Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Monday, 20 March 2017

 2                           [Open session]

 3                           [Appeals Hearing]

 4                           [The Appellants entered court]

 5                           [Appellant Pusic not present]

 6                           --- Upon commencing at 9.32 a.m.

 7             JUDGE AGIUS:  Good morning, everybody.

 8             Registrar, could you call the case, please.

 9             THE REGISTRAR:  Thank you and good morning, Your Honours.  This

10     is case number IT-04-74-A, the Prosecutor versus Prlic et al.

11             JUDGE AGIUS:  I'll start with a question directed to the -- I

12     notice immediately that there is a problem.  I want to make sure,

13     Mr. Praljak, your microphone, please.

14             THE APPELLANT PRALJAK: [Interpretation] [Microphone not

15     activated] ...

16             MS. FAUVEAU-IVANOVIC:  There's no translation.

17             JUDGE AGIUS:  So let's start with this.  Could I have an

18     assurance that the appellants are receiving interpretation.

19             Mr. Praljak, are you receiving interpretation now?  I'm

20     interested in what you are hearing in your headphones.  Perhaps you need

21     to change his headphones.

22             Can you hear what I am saying in your own language?  Yes, it

23     should be on channel 6.  But there is the technician there, he would be

24     checking.  It's okay.  All right.

25             So you can just nod to assure me that everything is okay with

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 1     interpretation?  All right.  Thank you.

 2             So now let me start with appearances for the parties, starting

 3     with the Prosecution.

 4             Mr. Stringer.

 5             MR. STRINGER:  Good morning, Mr. President and all of

 6     Your Honours.  For the Prosecution, I'm Douglas Stringer with

 7     Katrina Gustafson, Barbara Goy, and Janet Stewart.

 8             JUDGE AGIUS:  Thank you very much.

 9             As a preliminary matter before calling appearances for the

10     Defence, I note that counsel for Mr. Coric and counsel for Mr. Stojic

11     have requested, via e-mail to the Appeals Chamber senior legal officer,

12     that their assigned legal consultants, Mr. Ivetic and Mr. Ellis

13     respectively, be granted a right of audience during the appeal hearing.

14     These requests have been unopposed.

15             Furthermore, the ICTY office of Legal Aid and Defence matters has

16     confirmed to us that Mr. Ivetic and Mr. Ellis are qualified legal

17     consultants assigned to their respective Defence teams pursuant Rule 45

18     of the Tribunal's Rules.  In these circumstances, the Appeals Chamber

19     grants Mr. Ivetic and Mr. Ellis a right of audience.  Thank you.

20             I further note that on the 6th of March 2017, Mr. Pusic requested

21     and provided his consent for the appeal hearing to be held in his

22     absence.  There was no opposition and his request is hereby being

23     granted.

24             I'll now turn to appearances for the Defence.  I'll start with

25     the Defence for Appellant Prlic.

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 1             MR. KARNAVAS:  Good morning, Mr. President.  Good morning, Your

 2     Honours.  And good morning to everyone in and around the courtroom.  I am

 3     with Suzan Tomanovic, co-counsel for Dr. Jadranko Prlic.

 4             JUDGE AGIUS:  Thank you, Mr. Karnavas.  And good morning to you

 5     and Ms. Tomanovic.

 6             Appearance for Mr. Stojic.

 7             MR. KHAN:  Good morning, Mr. President, Your Honours.

 8     Mr. Stojic, who is in court, is represented by lead counsel

 9     Ms. Senka Nozica, Mr. Aidan Ellis, a member of the bar of England and

10     Wales, and myself Karim Khan.

11             JUDGE AGIUS:  Thank you, Mr. Kahn.  And good morning to you, to

12     Ms. Nozica, and Mr. Ellis.

13             Appearances for Mr. Praljak.

14             MS. PINTER: [Interpretation] Good day to everyone in and around

15     the courtroom.  The Defence is represented by Natacha Fauveau-Ivanovic

16     and myself, Nika Pinter.

17             JUDGE AGIUS:  Thank you, Ms. Pinter.  And good morning to you and

18     to Ms. Fauveau-Ivanovic.

19             Appearances for Mr. Petkovic.

20             MS. ALABURIC: [Interpretation] Good morning, Your Honours.  And

21     good morning to everyone in the courtroom.  For General Petkovic,

22     appearing, Vesna Alaburic and Davor Lazic and our assistant

23     Slavko Mateskovic.

24             JUDGE AGIUS:  Thank you very much.  And welcome to you and to

25     Mr. Davor, is he -- yes, he's here.

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 1             Appearances for Mr. Coric.

 2             MS. TOMASEGOVIC-TOMIC: [Interpretation] Good morning, Your

 3     Honours.  Good morning to everyone in the courtroom and around the

 4     courtroom.  For Valentin Coric, myself and Ms. Tomasegovic-Tomic, and

 5     Mr. Dan Ivetic, and Ms. Plavec.

 6             JUDGE AGIUS:  A technician, please, to assist colleague

 7     Judge Meron who hasn't got audio.  Did it happen just now, Judge Meron?

 8             JUDGE MERON:  I just started it.

 9             I suggest you proceed, Judge Agius.

10             JUDGE AGIUS:  You don't mind?

11             JUDGE MERON:  I will manage.

12             JUDGE AGIUS:  All right.  You don't mind.  Okay.  Thank you very

13     much for --

14             JUDGE MERON:  I can read the transcript.

15             JUDGE AGIUS:  Thank you, Judge Meron, for your co-operation.

16             So, yes, good morning to you and welcome, Mr. Ivetic and

17     Mr. Plavec.

18             And finally appearances for Mr. Pusic.

19             MR. IBRISIMOVIC: [Interpretation] [Via videolink] Good morning,

20     Your Honours.  Appearing for Mr. Pusic today, Mr. Sahota and myself

21     Mr. Ibrisimovic from Sarajevo, attorney-at-law.

22             JUDGE AGIUS:  Thank you very much.  And welcome, both of you.

23             I just want to confirm to make sure that there are no further

24     problems with the audio and that you are receiving interpretation in a

25     language that you understand?  Okay, I see nodding.

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 1             All seven parties here today have lodged appeals against the

 2     Trial Judgement rendered by Trial Chamber III on 29th of May, 2013.  In

 3     accordance with the Scheduling Order of 15th December, 2016, and the

 4     order for the preparation of the appeal hearing on 1st March, 2017, the

 5     Appeals Chamber will hear the appeals this week as well as on next Monday

 6     and Tuesday.  Before we begin, I will provide a very brief summary of the

 7     case before turning to the conduct of the appeal hearing.

 8             The events giving rise to the appeals in this case occurred

 9     between 1992 and 1994 in eight municipalities and five detention centre

10     camps in the territory of Bosnia and Herzegovina that was claimed as part

11     of the Croatian community of Herceg-Bosna and the Croatian Republic of

12     Herceg-Bosna.

13             The Trial Chamber found that Jadranko Prlic exercised duties of

14     the president of the government of the Croatian Republic of Herceg-Bosna

15     as of August 1993, having earlier been appointed the president of the

16     executive organ of the Croatian Community of Herceg-Bosna.  In June 1994,

17     he became vice-president of the government and minister of defence of

18     Bosnia and Herzegovina and of the Federation of Bosnia and Herzegovina.

19             Bruno Stojic also served in the government of the Croatian

20     Republic of Herceg-Bosna.  He was head of the Department of Defence from

21     July 1992 to November 1993 and subsequently headed the Department for the

22     Production of Military Equipment until April 1995.

23             Slobodan Praljak was the assistant minister of Defence of Croatia

24     and later served as the deputy minister of defence of Croatia.  From the

25     24th of July, 1993, to 9th November, 1993, he was commander of the

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 1     Main Staff of the Croatian Defence Council, Army of BiH Croats, before

 2     returning to Croatia as advisor to the Croatian minister of defence.

 3             Milivoje Petkovic served as chief of the Main Staff of the

 4     Croatian Defence Council between April 1992 and July 1993 and

 5     subsequently served as deputy commander.  In April 1994, he returned to

 6     his position as chief of the Main Staff of the Croatian Defence Council.

 7             Valentin Coric served in the government of the Croatian Republic

 8     of Herceg-Bosna.  He was chief of the military police administration in

 9     1992 and most of 1993 and then became minister of the interior, a post

10     which he held until early 1994.  In February 1994, he became a member of

11     the presidential council.

12             Berislav Pusic occupied various posts within the military police

13     of the Croatian Defence Council between February and July 1993, during

14     which time he also participated in negotiations for the exchange of

15     detainees or the bodies of the dead.  By May 1993, he became a member of

16     the exchange commission.  And in July 1993, he became the head of the

17     executive organ of the exchange commission.  On the 6th of August 1993,

18     Pusic became the head of the commission for HVO prisons and detention

19     centres.

20             The Trial Chamber found that by January 1993 a joint criminal

21     enterprise had come into existence that was aimed at creating a Croatian

22     entity in Bosnia and Herzegovina that would facilitate the reunification

23     of the Croatian people.  According to the Trial Chamber, this joint

24     criminal enterprise had as its common criminal purpose the "domination by

25     Croats of the Croatian Republic of Herceg-Bosna through ethnic cleansing

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 1     of the Muslim population."  The Trial Chamber concluded that all six

 2     Defence Appellants were participants in the joint criminal enterprise.

 3             The Trial Chamber convicted the Defence Appellants of various

 4     crimes charged by the Prosecution.  These charged crimes included:

 5             1. Grave breaches of the Geneva Conventions of 1949, namely

 6     wilful killing, sexual assault, unlawful deportation, transfer and

 7     detention of civilians, inhumane treatment and extensive destruction, and

 8     appropriation of property not justified by military necessity and carried

 9     out unlawfully and wantonly;

10             2. Violations of the laws or customs of war, namely:  Cruel

11     treatment, unlawful labour, wanton destruction of cities, towns, or

12     villages, destruction or wilful damage to institutions dedicated to

13     religion or education, and plunder of public or private property; and

14             3. Crimes against humanity, namely:  Persecutions, murder, rape,

15     deportation, forcible transfer, imprisonment, and inhumane acts.

16             The Trial Chamber based all of the Defence Appellants'

17     convictions on their participation in the joint criminal enterprise and

18     found them responsible through the basic and extended form of joint

19     criminal enterprise liability.  Coric was also found to bear superior

20     responsibility for some crimes which occurred in 1992.

21             Notwithstanding its findings of guilt with respect to the Defence

22     appellants for cruel treatment and wanton destruction of cities, towns,

23     or villages, the Trial Chamber declined to enter convictions for these

24     crimes after considering the principles related to cumulative

25     convictions.

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 1             Praljak and Pusic were acquitted of rape as a crime against

 2     humanity and sexual assault as a grave breach of the Geneva Conventions.

 3     Pusic was also acquitted of extensive appropriation of property and

 4     plunder of public or private property.  All Defence Appellants were

 5     acquitted of cruel treatment as a violation of the laws or customs of war

 6     in relation to the Siege of Mostar.

 7             The Trial Chamber sentenced Prlic to 25 years of imprisonment,

 8     Stojic, Praljak, and Petkovic were each sentenced to 20 years, Coric to

 9     16 years, and Pusic to 10 years of imprisonment.

10             All parties have lodged appeals against the Trial Chamber for a

11     combined total of 146 Grounds of Appeal.  The Prosecution argues that the

12     Trial Chamber erred in partly acquitting the six Defence Appellants and

13     seeks increases in their sentences.  The Defence Appellants submit that

14     they should be acquitted on all counts; and in the alternative,

15     Appellants Stojic, Petkovic, Pusic, and Coric seek finding of reduced

16     culpability along with a reduced sentence, while Appellant Praljak asks

17     for a new trial.

18             I can assure the parties that the Appeals Chamber is familiar

19     with your written pleadings, and I would therefore ask counsel not to

20     repeat or summarise in any extensive manner the arguments already

21     presented in your briefs.

22             Counsel are urged, however, to provide precise reference to

23     material supporting their oral submissions.

24             I should also like to remind the parties to speak slowly so as to

25     allow the submissions to be interpreted properly.  Additionally, I would

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 1     like the parties to be particularly careful, and please pay attention to

 2     this, not reveal any information that could identify a protected witness

 3     or other protected information or material.

 4             The parties were invited to discuss a number of issues set out in

 5     the order of 1st March, 2017, and I would like each one of you to

 6     indicate, for the sake of clarity, which issue you will be addressing at

 7     any given time by reading out the relevant question at the start of your

 8     submission.  I had hope I have made myself clear on this.

 9             It should be recalled that these appeals are not a trial de novo,

10     and the parties must refrain from repeating their cases which were

11     presented at trial.  Article 25 of the Statute provides that the

12     arguments on appeal should be limited to alleged errors of law that

13     invalidate the Trial Judgement or alleged errors of fact that have

14     occasioned a miscarriage of justice.

15             I will now turn to today's timetable.  The parties have been

16     allotted a specific amount of time to make their submissions this week

17     and next, set out in my order of the 1st of March, 2017.  Counsel are

18     reminded to organise their submissions in a way that adheres to this

19     schedule.

20             Today we will hear submissions from Mr. Prlic's counsel for a

21     total of two hours.  We will, however, have a pause of 15 minutes one

22     hour into these submissions.  After Mr. Prlic's counsel have completed

23     their submissions, the Prosecution will have two hours to respond.  As

24     with Mr. Prlic's submissions, we will pause halfway into the

25     Prosecution's response.  This second pause will last one hour and

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 1     30 minutes.  Finally after the Prosecution has responded, Mr. Prlic will

 2     have 30 minutes to reply.

 3             Lastly, I would like to note that it is customary for the

 4     Appeals Chamber to give appellants an opportunity to make a personal

 5     address to the Appeals Chamber if they so wish.  And therefore, we have

 6     reserved Tuesday, 28th of March, for this purpose when each Appellant

 7     will have ten minutes to address the Tribunal.

 8             I would like now to invite counsel for Mr. Prlic to present their

 9     submissions.

10             MR. KARNAVAS:  Good morning, Mr. President.  Good morning, Your

11     Honours.

12             Before I begin my presentation, I should note that Dr. Prlic

13     wishes to make or to share with me the oral argument.  This was a

14     decision that was made as of late Friday and over the weekend.  It is not

15     an allocution.  It is oral argument based on the errors of law and errors

16     of fact that were made by the Trial Chamber in issuing their judgement.

17             I have reviewed the material and the substance of Dr. Prlic's

18     presentation.  In my professional opinion, it comports with proper oral

19     argument.  It is his right, of course, to make such a request.  So at

20     this point in time, I'm informing the Appeals Chamber that it's his

21     request to share the oral argument time with his counsel.

22                           [Trial Chamber confers]

23             JUDGE AGIUS:  Thank you, Mr. Karnavas.

24             Yes, Mr. Prlic.

25             THE APPELLANT PRLIC:  I'm going to speak on my language.

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 1             [Interpretation] Your Honours, after the judgement, I have read

 2     the entire transcript of the trial, compared it with the judgement, I

 3     co-operated with my Defence team in the writing of appeal documents, and

 4     only after this weekend I decided to participate in the arguments.

 5             I have considered all the evidence that the Trial Chamber had

 6     failed to consider, because if it had, it would have completely reversed

 7     the judgement.  The Trial Chamber did not accept my only demand in the

 8     last address:

 9             [In English] Your Honours, you have the evidence before you.  I

10     asked that you not succumb to any closing arguments or final briefs.

11     Examine carefully all the testimonies and all the evidence.  Please turn

12     to the realistic context of the entirety of the events.  I am confident

13     that with that approach you will succeed in making a fair and objective

14     decision.

15             [Interpretation] I have just completed a book as well, six

16     volumes, 1800 pages, almost 9.000 footnotes about what was Herceg-Bosna

17     in context.  It will soon be published by the Academy for Arts and

18     Sciences of Bosnia and Herzegovina, reviewed by three academicians.  It

19     proves completely different intentions and purposes of Herceg-Bosna, but

20     it is a scientific study, not a story of criminal responsibility.

21     [In English] Trial Chamber, I'm going to use just chamber.

22             [Interpretation] The Trial Chamber concerning question 4, your

23     question 4, failed to establish what was Herceg-Bosna.  In that month of

24     October 1993, when allegedly I became aware of the purpose of the joint

25     criminal enterprise, the Presidency of the HZHB had a session attended by

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 1     at least 22 more representatives of municipalities, more than the

 2     original 30 from the basic decision on its establishment on

 3     18 November 1991, adopted a decision to accept the association of all

 4     Croatian communities, I quote:  "Bosanska Posavina, Usora, Central

 5     Bosnia, the community of Soli and Sarajevo," 2D01262, page 16.

 6             Based on several shown documents, a map was made showing

 7     municipalities that were part of the HZHB showing that it covers most of

 8     Bosnia and Herzegovina.  Please show document 1D02843 and let this

 9     document displayed throughout my presentation.

10             MR. STRINGER:  I apologise for intervening, Mr. President, but

11     we're already embarking on a procedure, I think, that's not certainly

12     been approved by the Chamber or comports with the Rules and, at the very

13     least, is going into issues that the Prosecution -- it's not clear to us

14     the extent to which these fall within the appeal grounds and the issues

15     that are before the Appeals Chamber.

16             JUDGE AGIUS:  Mr. Stringer, sorry to interrupt to you, but the --

17             THE APPELLANT PRLIC:  This is Ground 9 of our appeal, so this is

18     absolutely clear.  And I'm going just to speak about --

19             JUDGE AGIUS:  One moment --

20             THE APPELLANT PRLIC:  -- [Overlapping speakers].  Nothing else.

21             JUDGE AGIUS:  Mr. Prlic, one moment.

22             Mr. Stringer has raised an issue, which is not an issue at the

23     same time, but I need to address it.

24             Mr. Stringer, it seems that the Appellant Mr. Prlic and his

25     counsel have agreed on the way the Defence case for purpose of this

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 1     appeal is to be conducted.  There is nothing in the procedure that would

 2     make it possible for me to stop Mr. Prlic from taking over and presenting

 3     the case entirely himself at the same time keeping counsel present in the

 4     courtroom in case he would like to seek advice from him.  But as far as

 5     the presentation of the arguments are concerned, there is no way I can

 6     entertain your submission that this is something strange.  It's something

 7     that certainly is not ruled out by our procedure.

 8             MR. STRINGER:  Very well, Mr. President.  Thank you.

 9             JUDGE AGIUS:  Thank you.

10             Mr. Prlic, you can proceed.  And in addition, he is addressing

11     some of the questions that we have put in the -- mentioned in the order

12     of 1st of March.

13             Yes, Mr. Prlic.

14             THE APPELLANT PRLIC:  May I proceed?  Thank you, Mr. President.

15             [Interpretation] Also, Defence Offices were formed in 46

16     municipalities, P00700.  Instead of a couple of Tudjman quotations from

17     1991 taken out of context, the Trial Chamber, in formulating the alleged

18     political purpose in paragraph 43, failed to take into account dozens, I

19     would say hundreds, of quotations from other presidential transcripts.  I

20     don't want to enumerate them all, it would take too much time, but they

21     are in our appeal brief, count 9.

22             Tudjman continuously, regardless of the people he is speaking

23     to - his internal circle, international representatives, Muslims or

24     Croats from Bosnia and Herzegovina - uses the same language supporting

25     the independence of Bosnia-Herzegovina, expressing himself against any

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 1     change of border, for co-operation with Muslims, against war, and he

 2     refuses annexation of Herzegovina which was offered to him by

 3     Izetbegovic.  He was under pressure from the international community to

 4     change borders.

 5             The Trial Chamber also neglected all the assistance of Croatia

 6     and the HVO to the government in Sarajevo and Muslims.  Why is this

 7     important?

 8             THE INTERPRETER:  Could Mr. Prlic be asked to slow down.

 9             THE APPELLANT PRLIC: [Interpretation] The Trial Chamber --

10             [In English] Yeah, yeah.  I just heard.

11     [Interpretation] The Trial Chamber failed to consider that Herceg-Bosna

12     did not contain only the municipalities mentioned in the decision on its

13     establishment in 1991.  The so-called common criminal purpose in paragraph

14     43 is erroneous.  That's question 4.  As well as that from October Prlic

15     and others were aware that this purpose could have been achieved only by

16     displacement of Muslims.  Herceg-Bosna in mid- January, when the common

17   criminal plan supposedly emerged, comprised almost all the free territory of

18   Bosnia- Herzegovina.  Herceg-Bosna, without any defined borders, as well as

19   the Republic of Herceg-Bosna, continuously, all the way up to the Federation

20   in 1994, as its Constitution stated, contained all the majority Croat and

21   Bosniak areas in BH, P04611, 4D01234.   As Izetbegovic stressed in 1993, that

22   part from Tuzla to Neum, you can see that on the map, contains almost 2 and

23   a half million people under protection of partly the army, partly the HVO,

24   P01739, page 24.  The Trial Chamber failed to consider that the president of

25   the HVO HZHB, and later the government was answerable to presidents of the

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 1     municipal HVO who were members of the Presidency of the HZHB, that is to

 2     say the Croatian Republic of Herceg-Bosna, from 46 different

 3     municipalities throughout Bosnia-Herzegovina and not a select club that

 4     was supposedly answerable to the alleged purposes of the JCE, 1D02816,

 5     P07410, pages 18 to 20, 1D02740.

 6             This is important for later consideration about the displacement

 7     of population and annexations of parts of territory.  On behalf of

 8     all of the municipalities, the President Mate Boban, later Zubak,

 9     negotiated on all international plans on internal organisation, not

10     division as is sometimes claimed, from the Cutileiro Plan about three

11     constituent units, the Vance-Owen Plan concerning ten provinces, the

12     union of three republics, up to the federation, the plan of the contact

13     group, and the Dayton Accords.

14             The Trial Chamber failed to establish that the mentioned Croatian

15     communities were created as a form of organisation within the party for

16     the purpose of defence during 1991 against the background of the breakup

17     of Yugoslavia.  If the Trial Chamber had correctly judged on the

18     evidence, it would have concluded that the Serbian attacks on Croatia and

19     the expansion of war throughout the Bosnia and Herzegovina have

20     manifested the intention to create a Greater Serbia in which the entire

21     Bosnia-Herzegovina, look at maps 3D00871, would have been a part, and

22     that makes pointless the story about the alleged agreement in

23     Karadjordjevo, especially since the war started after that.

24             The Trial Chamber also neglected that the republic government did

25     not prevent attacks on Croatia from Bosnia-Herzegovina, nor was it able

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 1     to organise defence of the country, which was also admitted by

 2     Izetbegovic:  "At the time when the war began, we didn't have any army at

 3     all," P00336, page 8.

 4             If the Trial Chamber had correctly judged the evidence, it would

 5     have concluded that the Croatian communities were a form of organisation

 6     within the party due to the unreadiness of the Republic of

 7     Bosnia-Herzegovina for its own defence, ID2078.  Namely, a series of

 8     meetings of the HDZ in 1991 shows sequence of preparation for defence, also

 9     seen in the regionalisation.  Out of a total of 109 municipalities in

10     Bosnia-Herzegovina, the -- it comprised 70 in eight regional communities:

11     Travnik, Herzegovina, Sarajevo, Doboj, Zenica, Tuzla, Posavina, Bihac,

12     Kladusa, and the area of Banja Luka.

13             JUDGE AGIUS:   Mr. Prlic, please, you need to slow down.

14             THE APPELLANT PRLIC:  Yeah, but the interpreter has my text.

15     Okay, okay.  Thank you.

16        [Interpretation] In the area of all, except for Banja Luka, later armed

17     forces were formed.  [In English] Politically, character of HZHB was

18     confirmed three days after its very establishment.  Excuse me.

19             [Interpretation] The government of Bosnia-Herzegovina concluded

20     that it was a party organisation and activity, 2D00594.  The Trial

21     Chamber neglected, and this is very important, in establishing the

22     alleged criminal purpose, criminal intent, and its territorial aim, that

23     the HDZ, BH, within which communities were formed, in all its programme

24     documents from 1990 to 1994 was always in favour for the independence of

25     Bosnia-Herzegovina and the equality of the Croatian people within it,

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 1     following the course of international negotiations, 1D02699, P0022,

 2     P0031, P08748, page 274.

 3             Also supporting this, the Presidency of the Socialist Republic of

 4     Bosnia-Herzegovina, with the votes of two Croatian representatives, on

 5     20th December, 1991, addressed a demand for the international recognition

 6     of Bosnia-Herzegovina.  The Trial Chamber neglected that there were two

 7     conditions for the recognition of Bosnia-Herzegovina, which is important

 8     for criminal intent.  What was necessary, beside a referendum, was an

 9     agreement on the internal structure, organisation of Bosnia and Herzegovina

10     by the representatives of its constituent peoples.

11             In this connection, the international community prepared the

12     Cutileiro Plan accepted by all the three parties in March 1992.  The

13     declaration on principles envisaged the following:  Bosnia-Herzegovina is

14     a state made up of three constituent units based on ethnicity, taking

15     into account in all the economic, geographic, and other criteria.  The

16     Trial Chamber neglected to consider that the Croats were tricked because

17     they expected that with the recognition of Bosnia-Herzegovina, voted for

18     by the referendum, would resolve also the question of its internal

19     organisation as promised by Izetbegovic.  Izetbegovic himself admitted to

20     tricking them.  1D02720, P00117, et cetera.

21             The Trial Chamber neglected to consider that the HZHB was not

22     active at all until the beginning of the war on 8 April when the military

23     wing HVO was formed.  It was the first decision after its establishment,

24     which testifies to the purpose of the community, that is to say, defence.

25             On the other hand, the Presidency, that is to say, Izetbegovic,

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 1     mainly without the participation of Croats, formed the TO, later called

 2     the Army of Bosnia-Herzegovina, basically a Muslim army.  With a decision

 3     on the establishment of units of Territorial Defence in May 1992, in --

 4     44 different units were formed, and Izetbegovic named 44 commanders; 43

 5     Muslims and one Serb.  There were no units in areas where HVO already

 6     existed on a massive scale, such as Herzegovina or Posavina.  3D00420.

 7             The Trial Chamber failed to establish reasons why the HZHB took

 8     over part of executive powers temporarily.  First of all, it failed to

 9     take into account the collapse of governments in Bosnia-Herzegovina.

10     Just three examples:  The entire budget was financed from primary issue,

11     which is economically unheard of.  1D03003.  Second, unconstitutional

12     districts were formed and they were given the entire authority.  Three,

13     the Law on Public Finance transferred to municipalities and districts the

14     power to impose any taxes and levies and customs, 1D02047.

15             The Trial Chamber also failed to take into account that

16     municipalities practically became states at that time.

17     Boban explained the reasons for taking over executive powers from

18     September '92, I quote: "To ensure supply, trade, production, health

19     services, the safety of citizens and their property, accommodation of

20     refugees.  Those decisions do not bring into question the sovereignty and

21     integrity of Bosnia and Herzegovina in any way. 1D2441.

22             The president of the HVO HZHB adds:

23           "We have to organise life on a daily basis.  Our economic, financial,

24     and any other system in Bosnia-Herzegovina has completely collapsed."

25     The President of the BiH government agreed with that, in the same document.

Page 133

 1             The Trial Chamber failed to consider that the entire development

 2     of government can be divided into three stages.  In the first period, until

 3    September 1992, it was the municipalities and the HVO HZHB, municipalities

 4     and the HZHB Presidency, municipalities and HVO HZHB up to late 1993,

 5     all the way up to November 1993 when the house of representatives and

 6     the government of Herceg-Bosna became key players.  And that's when the

 7     first budget was adopted for 1994.

 8             The Trial Chamber failed to take into account that the decree on

 9     rights and duties and the structure of authority of government in

10     municipalities was taken in December 1993 and defined for the first time

11     the rights and duties of municipalities, which at the time of

12     Herceg-Bosna was never done, except for a perfunctory decision in June '92.

13       In paragraph 44 the Trial Chamber concluded that in the beginning -- that

14    in the middle of January began the so-called JCE, neglecting that on the

15    15th January Boban says to Izetbegovic and the co-chairman of the

16    International Conference on ex-Yugoslavia, Berenson, Owen:

17    "This is important:  To forbid Muslims from the SDA to participate in this

18    government.  We are waiting.  Spots are waiting, P1158. Muslims had rejected

19    participation in the government and in administration.  In Mostar, for

20   instance, in a ratio of 50:50.  And on the level of Herceg-Bosna, 35 per

21   cent, to which Izetbegovic had previously agreed, 1D2546.  Prlic noted in

22   April 1993: For example, in Mostar that ratio was 5O-50, in Travnik the same.

23   That is not the problem.  The problem of mixed territories does not exist.  I

24  said before that in this area there were more Muslims living there than before

25   the war. 1D1655, P2046.  There are many decisions speaking about the

Page 134

 1     participation of Muslims in government in Herceg-Bosna.  I don't want to

 2     mention them all.  The Trial Chamber completely neglects, and this is

 3    very important to criminal intent, that the HVO was the only multiethnic

 4    formation in that area at that time.  Five months after the so-called

 5    JCE, in three brigades in the Mostar area, the number of Muslims was between

 6     15 and 35 per cent.  In the entire HVO, there were 16 per cent of Muslims.

 7             The Trial Chamber completely neglects the temporary nature of

 8     Herceg-Bosna and its activity within the -- within Bosnia-Herzegovina,

 9     which is very important for assessing CCP.  HVO is a temporary body, as

10     said in its founding document, that would exercise its powers until the

11     moment when the regular government is established.  Its temporary nature

12     is emphasised not only in every document but also the very title of the

13     document, that is to say, decree, not law, that would imply a statehood

14     character.

15             In its reporting to the Presidency of HZHB, the HVO itself calls

16     itself a temporary organ of executive power, pending the establishment of

17     regular government.  Its temporary nature is emphasised in all public

18     appearances.  1D02078, page 5; 1D02225, pages 2 and 3.  It must be said

19     that the judicial system of the HZHB was activated on a temporary basis

20     and it remained within the framework of the republic legislation and

21     structure, 1D73, 139 and 201.

22             The Trial Chamber failed to take into account evidence indicating

23     that Herceg-Bosna was a community of -- a collection of communities of

24     municipalities that functioned within the legal system of Bosnia and

25     Herzegovina, 1D02441.  And this is confirmed by the president of HVO HZHB

Page 135

 1     in a TV programme.  I quote:

 2         "This temporary executive power was elected by presidents of the War

 3    Presidencies of the municipalities, and in that way the legitimacy is secured

 4    for that temporary executive authority.  In all its documents, it notes that

 5   all of these are temporary regulations. It adopts temporary measures, respects

 6    the legislature of the republic, and in the preamble of all decisions it

 7    ties into decisions relating to the imposition of the state of war and the

 8    immediate danger of war and to the Constitution of Bosnia and Herzegovina."

 9    1D02078, pages 4, 5.  The documents that were adopted were provided to the

10    government of the RBiH by its president.  HBHZ always carried the name

11    Bosnia and Herzegovina above its own name in all documents and decisions.

12             The Trial Chamber also neglects my address to the Sarajevo media

13     in March 1993.  The Croatian Community is one of the foundations of the

14     development and creation of the future Bosnia and Herzegovina and not an

15     instrument of its destruction.  Generally, the central authority in the

16     republic does not exist.  And by establishing all the instruments of

17     authority in these areas, we have given a concrete contribution to the

18     creation of the state of the BiH, document 1D225.  Izetbegovic was aware of

19     the character of Herceg-Bosna, which his words confirm at a press conference

20     in Mostar on the 8th of October 1992.  This is 1D02238.

21             The Trial Chamber did not take into account that as of

22     November 1992 by a decision of the government of the RBiH, published in

23     the Official Gazette, the president of the HVO HZHB, that's me, the

24     president of the government, just to be clear, represented the government

25     of Republic of Bosnia and Herzegovina of the area of the HZHB, which

Page 136

 1     meant a recognition of the temporary nature of the executive body.  1D898.

 2    There was an authorisation regarding the mentioned decision. 1D2147. I quote:

 3             "A co-ordination of all measures adopted by the government of the

 4     Republic of Bosnia and Herzegovina and the Croatian Defence Council

 5     HZHB."  This is the sphere in which I acted and was recognised for.  This

 6     is 1D02565.

 7             The Trial Chamber completely neglected and disregarded that

 8     Herceg-Bosna for the first time after more than 100 years established a

 9     border with the Republic of Croatia in the part of BiH where the

10     population was practically 100 per cent Croatian.  These are documents

11     P1560, 1D2221, 1D2704, 1D -- and many others.

12             The Trial Chamber failed to take into account evidence that the

13     Croatian community and the Croatian republic were never states, nor did

14     they want to be states.  They did not have a defined area as can you see

15     on the map, nor boundaries or borders.  In all the founding documents,

16     for example, the statutory decision on the executive power, it is always

17     said "area," "podrucje," not "territory" which would imply a state

18     character of the body.  This is 1D899.

19             Furthermore, the decree on taking over decrees with the force of

20     law and the citizenship of BiH, the citizenship of Herceg-Bosna is not

21     being introduced.  We were all citizens of Bosnia and Herzegovina.

22     P7179, P7082.  Herceg-Bosna never sought international recognition.

23             To answer your question number 4 where paragraphs 283, 284 from

24     the judgement are cited, I don't need to repeat them here, these are

25     paragraphs relating to the drafting of the ultimatum and so on, it is

Page 137

 1     important to note that the counsel, among other things -- the Chamber,

 2     among other things, failed in an adequate way to establish the

 3     responsibilities of the president of the HVO HZHB.  Just like you,

 4     Mr. President, the president of the temporary organ of executive power could

 5     act only at convened meetings.  P303, article 16.  He had one vote in the

 6     body, the collective body of some 20 members, heads of departments

 7     and sub-departments.  The president signed all decisions even though in

 8     theory he could have been against them in the same way that applies

 9     to you, Mr. President.  Documents P9530, 1D2117, P303, 1D65, 1D1643.

10             The Chamber reached erroneous decisions regarding the option of

11     supervision of departments by the president of the HVO HZHB.  It failed

12     to consider that the departments were independent, answerable to the

13     Presidency of HZHB, which appointed them before it appointed the

14     president of the HVO HZHB.  These are P303, Articles 2 to 22; 1D1,

15     Articles 2 to 7; P434; 1D171; 173; 174; and 010.

16             Had the Trial Chamber properly considered the evidence, they

17     would have reached beyond a reasonable doubt the decision that the HVO

18     HZHB and the government did not have military powers or the option of

19     utilising the armed units.  This is part of Ground 2 of our appeal.

20             The Trial Chamber failed to reach the only reasonable conclusion,

21     even though it concedes in paragraph 106 that I was not part of the chain

22     of command but still its decision treated me as if I were.  The Trial

23     Chamber erred because it did not note that by changing the decree on

24     armed forces in October 1992, HVO HZHB lost all its authorities regarding

25     the armed formations, which is logical in view of the fact that Boban was

Page 138

 1     no longer at the head of the HVO HZHB, Articles 30 and 34, and the armed

 2     force were financed by the municipalities.  This is P289, Article 55; and

 3     P588, Article 170.

 4             HVO HZHB did not receive any security information.  P128, page 19.

 5     The security service, which was formally part of the Defence Department, was

 6     financed by the municipalities.  2D931.  No single document or decision

 7     provided for by Article 9 of the Decree on Armed Forces was not adopted

 8     regarding the HVO HZHB, nor was ever any plan of defence of HZHB.  HVO

 9     HZHB or its president never issued a single order.  Not one decision.

10     Not one meeting was marked with any degree of confidentiality,

11     and let me remind you all this was happening during the war.

12             The Trial Chamber failed to take into account that I was

13     appointed president of the government of Bosnia and Herzegovina in late

14     May 1993, four months after the alleged beginning of the JCE, with the

15     approval of the Muslims, which is confirmed in a letter by

16     Alija Izetbegovic on the 27th of May 1993.  I quote:

17             "We Medjugorje agreed for you to be the candidate for the first

18     prime minister of Republic of Bosnia and Herzegovina."  Document 1D1600.

19             The Trial Chamber failed to take into account that I took

20     measures in order to set up effective organs of authority in BiH with the

21     intent of applying international plan of construction of a normal

22     Bosnia-Herzegovina, attempting to include third parties in this.

23     documents 1D from 1586 to 1602.  This process included the abolishment or

24     rather the transformation of the institutions of Herceg-Bosna into

25     provincial or rather institutions of Bosnia-Herzegovina.  3D342.

Page 139

 1     In any event, I stopped being the president of the HVO HZHB and stopped

 2     coming to meetings.  This is document 1609, 1608, and 1666.

 3             JUDGE AGIUS:  One moment, Mr. Prlic.  Again, my attention is

 4     being drawn to the fact that you are reading too fast for the court

 5     recorders.

 6             THE APPELLANT PRLIC:  Thank you.

 7             THE INTERPRETER:  Interpreter's note:  We are actually not

 8     reading from the text.  We are translating a Vista.

 9             THE APPELLANT PRLIC:  [Interpretation] All these elements are

10     important in response to your questions 4, 5, and 10 because the

11     Trial Chamber failed to review the alternative explanation, that the

12     decision of the 15th of January, 1993 was adopted with the conviction

13     that agreement was reached on a joint command following a large number of

14     agreements which were never implemented, with the conviction of

15     preventing conflict, and that after the demobilisation, demilitarisation

16     would also follow as provided for under the VOPP.

17             The Trial Chamber fails to note that the decision was reciprocal,

18     temporary, and as it is stated in his document by the chief of the

19     Main Staff, the commands of the armed forces of the HVO at the level of

20     the operative zones and brigades must include officers of the ABiH

21     proportional to the number of soldiers on the front line.  This is also

22     the implementation of the agreement on joint commands.

23             In this document by Petkovic, there is no threatening nature as

24     indicated in paragraph 7.  The commanders of the operation zones must

25     speak with the commands of the ABiH and find the best solutions to form

Page 140

 1     joint commands.  Document P1l56. There would be no logic in the HVO agreeing

 2     to the subordination of its own forces to this party it considered a threat

 3     or a hostile party.

 4             As many as 11 HVO brigades fought together with the ABiH in

 5     cantons where there was no majority Croatian population.  I see 47.

 6     There was no intention to enforce this by force.  P1215.  It's based on

 7     practically the same elements, and it's identical to the decision issued

 8     at the same time by the defence minister of Bosnia and Herzegovina.

 9     2D1409.

10             The Trial Chamber neglected the fact that this decision could not

11     have any effect on events on the ground.  The only clash that occurred in

12     that period was the one in Gornji Vakuf which began on the 11th of

13     January.

14     The Trial Chamber failed to conclude, and this has to do with your questions

15     4 and 5, and one can see this simply by looking at the documentations,

16     that a local ultimatum was issued in Gornji Vakuf for all the trenches to

17     be abandoned on the 17th of January, all the trenches that were facing the

18     HVO and that were dug by the Army of the -- the ABiH, which in no way has

19    anything to do with the decision of the HVO HDZ of the 15th of January, 1993.

20     The command by Andric was a simple military reaction to the situation

21     on the ground because the ABiH army placed trenches facing the HVO and

22     blocked its movements, including its access to its own command, documents

23     P1l85 and 1194. Document 4D348, citing Andric's command and this local

24     one-day ultimatum, repeats points from the agreement of eight points that

25     had to do with internal already agreed on measures, such as a cease-fire,

Page 141

 1     abandoning the covering up the trenches, organisation of joint patrols,

 2     demilitarisation of the town, and so on with a deadline of implementation

 3     of 24 hours on the 17th of January, 1993.  This is confirmed by documents

 4     from both side.  P1163, 1174, 1182, 1206, 1220, 1226, 1236, 1D816.

 5       Andric's order explicitly stated, I quote: "apply the conditions

 6     from the cease-fire agreement of the 13th of January."  This is 4D348 and

 7     4D346.  So it has nothing to do with the decision of the HVO HZHB of the

 8     15th of January, which in all of its derivatives does not have the

 9     form of a military command, has nothing to do with the use of armed

10     forces, and which provided for the implementation of joint commands as of

11     the 20th of January, 1993.  P1146.

12             And a key moment, the Trial Chamber neglected that the decision

13     of the 15th of January never went into effect, nor could it produce any

14     kind of effect, because it was withdrawn before the deadline for its

15     implementation.  In a letter written by his own hand, Mate Boban,

16     HZHB president, who provided the information and the order on the

17     agreement, so that said decision of 15 January could be issued, wrote on

18     the 20th of January, on the day it was supposed to be implemented, I quote:

19             "I direct you in the course of the day to schedule an

20     extraordinary meeting of the HVO HZHB and to amend item 5."

21             HVO HZHB did exactly what Boban and Izetbegovic asked in their

22     letter, P1267, of the 17th of January.  It reached the decision to extend

23     the deadline for its implementation until peace negotiations ended.

24     1D820, 1D821, 1D1655, P2046.

25             Thus, had the Trial Chamber taken this evidence into account, it

Page 142

 1     would not have, and particularly not beyond a reasonable doubt, have

 2     concluded that it constituted, I quote "agreement regarding common

 3     criminal design."  This is the trial judgement paragraph 44.

 4             In the same way, had the Trial Chamber taken into account that

 5     there was no activity aimed at doing anything in order to apply the

 6     so-called ultimatum in April, the Trial Chamber would have rejected the

 7     construction arrived at on the basis of a couple of articles in the

 8     press.  The Trial Chamber erred turning Boban's proposal into the firing

 9     point for a conflict to set up common commands in accordance with the

10     VOPP, which he and Izetbegovic were given as a task by the co-presidents

11     of the MKBJ with the implementation deadline of two weeks, which was

12     confirmed by Owen.  P2059, page 2.

13             Other than newspaper reports from suspicious sources, as shown in

14     ground 16.2, there is no evidence, not a single command, that anything was

15     intended to be implemented, particularly not any kind of assault

16     activity.  The Trial Chamber failed to note that the question of the

17     so-called ultimatum was not on agenda of any subsequent meeting of the

18     HVO HZHB in April 1993.  2D891, 2D689.  Not even in presidential

19     transcript, including the conversations between Tudjman and Boban with

20     Izetbegovic and international representatives.  P2059, P1883.  Nor was it

21     ever mentioned in thousands of pages of the file of documents of the

22     international conference on the former Yugoslavia nor in Owen's book nor

23     in any report of the military section of the Croatian Defence Council.

24     P3642, 1D2159.

25             And all of that boiled down to conflicts in two villages in the

Page 143

 1     Jablanica municipality, in which the ratio of forces was 2.500:300 in

 2     favour of the Muslim forces , as stated by ABiH Commander in Jablanica.

 3     The Trial Chamber failed to take into account that the BiH

 4     army issued orders and attacked already on the 13th of April, 1993,

 5     and then again on 14th and 15th of April at seven different locations,

 6     indicating that could have been no ultimatum issued by the HVO

 7     on the 15th April.  Documents 4D1241, 83, 453, 599, 1241.

 8             The Trial Chamber did not note that on that same month, the 24th

 9     of April, Boban and Izetbegovic army commanders, together with Owen,

10     issued a joint statement about the forming and structure of joint

11     commands of the BiH army and the HVO and do not refer to any ultimatum

12     whatsoever.

13             Had the Trial Chamber correctly assessed evidence, they could not

14     have concluded that the Croatian side unilaterally implemented the VOPP

15     because the decision of its implementation was also adopted by the Muslim

16     side.  It was adopted at their own assembly, and already in January 1993

17     Izetbegovic issued the direction to the party to form provincial organs.

18     Documents 1Dl281, 1D241, 1D31313, P946.

19             The Trial Chamber did not review evidence that the Muslim side

20     even -- in spite of its statement was not prepared for its

21     implementation, going by promises that it could gain more.  So instead of

22     that, in the spring of 1993 it implemented unconstitutional districts as

23     a typical example of its dual policy.  1D2565, 1D1972, and so on and so

24     forth.

25             It was impossible unilaterally to implement the Vance-Owen Plan,

Page 144

 1     which was very precise and even provided for the ethnic composition of each

 2     of the provinces.  Had the Trial Chamber correctly assessed the evidence, it

 3     would have established that the ABiH issued orders for attack in all

 4     municipalities, whereas there are no such orders on the HVO side.  And

 5     believe me, I have gone through all the documents in existence.  In both

 6     the areas with a Croatian majority, such as Prozor, Travnik, Fojnica,

 7     Vitez, Busovaca, Konjic, Jablanica, Mostar, Stolac, Bugojno, but also in

 8     Zenica, Kakanj, and Vares, and Zepca.  In all of those municipalities,

 9     the HVO was the significantly weaker military force.

10             Let's take a look at the orders existing in Prozor such as

11     P00430, P00716, P00687; then Mostar and Stolac, P01970, 4D00035, 4D02000;

12     and dozens of such orders to attack in all municipalities.

13             The Chamber completely failed to consider the course of ABiH

14     occupation and the expulsion of Croats and the HVO from the so-called

15     provinces with a Croatian majority.  It is illustrated by the

16     chronological sequence of maps that you can have a look at in 4D00561

17     to -567, and then 4D0621 and -622.  It is a chronological illustration of

18     how the ABiH occupied in sequence the provinces with Croatian majority.

19             An approximate figure of expelled Croats can be seen in 4D00567

20     according to the data of the office for displaced persons.

21             When the Vance-Owen Plan was announced in mid-January and as of

22     the -- for the date as of which the Trial Chamber found that alleged

23     Croatian criminal plan to reduce the number of Muslims in the majority

24     provinces came into being, the HVO controlled 88 per cent of provinces

25     with the Croatian majority, whereas in August of 1993 when this alleged plan

Page 145

 1     was implemented, the HVO was in control of less than 50 per cent.

 2     According to the statement of Kresimir Zubak, the president of the HRHB.

 3     It is 1D2340.

 4             The Trial Chamber did not consider the true capability and

 5     efforts of the HVO HZHB to combat crime and prosecute and try the

 6     perpetrators.  It did not take into account that at the sessions of

 7     HVO HZHB, as the sole type of activity, there is no mention of the

 8     Banovina anywhere or any annexation of territory as well as the policy of

 9     forcible expulsion, population transfer in keeping with a particular

10     goal, or any kind of discrimination.  One does not find it in any piece

11     of legislation as published in the Official Gazette.  There is nothing to

12     contravene the Geneva Conventions.  There is nothing discriminatory

13     against anyone.  Such regulation can be found in P00947 and P05166.

14             Also, all public addresses, all discussions, all internal

15     meetings were dedicated to fully respecting international humanitarian

16     right in an attempt to influence all those responsible to abide by the

17     principles.  All statements that were made were against transferring

18     people and in order to secure their rescue in order to enable free

19     movement of humanitarian convoys.  In any case, there's no evidence that

20     I could have approved a single one or deny a single one.  It also

21     includes closing down the detention centres, which actually took place

22     owing to the decisions of the competent bodies.  We can see that in

23     P03560, P03673, and dozens of other documents.

24             Combatting crime is something else that the Trial Chamber failed

25     to consider, and it can be seen on the agenda of all the meetings of the

Page 146

 1     HVO HZHB.  For example:

 2             "In the area of the judiciary, we need to design such criminal

 3     prosecution policy that would be aimed at strictly sanctioning the

 4     perpetrators of particularly grave crimes such as murder, theft, and

 5     robbery."  It is P04276.  Due to continuing efforts,

 6     after lengthy preparations, as part of the Spider Operation, dozens of

 7     arrests were carried out.  The principal responsibility lay with the

 8     independent judicial institutions of the HRHB soon to be integrated in the

 9     federation in order to prosecute the most serious types of crimes, including

10     war crimes.  It is 1D01249, 1D01256, 1D01251, and so on and so forth.

11             The Trial Chamber neglected to consider the efforts of the

12     government in order to establish an independent judiciary based on the

13     principle of the three branches of government.  The judicial branch was

14     supposed to be particularly independent of the legislator by the

15     legislation having no say in the appointment of prosecutors and judges in

16     the HRHB.  There was an independent judicial council in place to do that.

17     P4611, 1D976, P7165.  The copies of criminal cases registers indicate

18     that the courts properly addressed this topic.  P document P100 and document

19     101.  The Trial Chamber failed to consider that the federation took over

20     all cases, documents, and archives from the judiciary of the HB in order

21     to ensure the continuity of the judicial proceedings.  One needs to add that

22     the judiciary was the first one to be constructed when the federation was

23     created owing first and foremost to the personnel from the government of

24     HRHB for assumed functions in the federation government.  This is 5D05024,

25    5D05027, and so on and so forth.  As you all know -- I was there -- under the

Page 147

 1   Rome Rules of the Road from February 1996, the Prosecutor's Office here took

 2   over the responsibility of evaluating the justification of all indictments.

 3             JUDGE AGIUS:  Mr. Prlic, you have seven minutes left.

 4             THE APPELLANT PRLIC:  Seven?

 5             JUDGE AGIUS:  Seven minutes.  Yes, thank you.

 6             THE APPELLANT PRLIC:  Have you excluded questions?

 7             JUDGE AGIUS:  Yes, I have.  Seven minutes left.

 8             THE APPELLANT PRLIC:  Okay.  Thank you.

 9             [Interpretation] The Trial Chamber failed to consider the

10     difference between prisons and detention centres over which the HVO HZHB

11     had no authority.  The military and civilian prisoners were there to

12     accommodate persons who were currently on trial or who received their

13     final judgements.

14             Detention centres, on the other hand, were aimed at accommodating

15     war prisoners, and this difference was pointed out at the meeting of the

16     HRHB government of the 6th of September 1993.  The conclusion was that it

17     was assessed that the responsibility for the current situation does not

18     lie with the HVO HZHB.  It is P04841.  I will skip the part now that I

19     intended to read out concerning detention centres.

20             The Trial Chamber also failed to consider that the Croats

21     accepted all peace plans, as the only party to do so with the sole wish

22     of creating a sustainable Bosnia-Herzegovina.  Each one of those plans

23     was based on the same principles; that is, to preserve Bosnia-Herzegovina

24     and not to acknowledge any kind of population movement.  All of them were

25     based on the 1991 census.  What was the sense to go against that if you

Page 148

 1     look at the map from the beginning of the presentation as promoted by the

 2     Croatian community and the Croatian republic?  Because that map was used

 3     to create the Federation of Bosnia-Herzegovina.  It makes no sense to

 4     conclude otherwise.  All those who left their homes, which is again

 5     something that the Chamber failed to consider, were allowed to go back

 6     to their home during my work in the Government of Bosnia and Herzegovina,

 7     were allowed to return, and take back their apartments in majority Muslim

 8     areas, where permanent decisions were made to that effect, as opposed

 9     to the decree of Herceg-Bosna which did not allow for such possibility.

10             The Chamber failed to reach the only reasonable conclusion.

11     There was a decree in place which attempted to co-ordinate the differing

12     municipal practices and tried to rectify the discriminatory nature of

13     the republican law.  As such, it had nothing to do with the illegal

14     evictions as a criminal activity, because in Article 3 is regulated that an

15     apartment cannot be assigned on a temporary basis if its former tenant was

16     the victim of ethnic cleansing.

17             There are five volumes of lists of tenants by the public housing

18     enterprises in Mostar indicating that most of such abandoned properties

19     in Mostar were assigned to Muslims.  It is 3D01027.  The Chamber also

20     erred in concluding that there was a reverse ethnic cleansing.  If you

21     look at the map, it makes no sense.  The official policy was for everyone

22     to remain in their homes.  P01015, 1D01824, P08155.

23             Evacuations were carried out for -- because of danger and to

24     avoid humanitarian disasters when there were attacks by ABiH assisted by

25     Mujahedin forces.  An example of that is the letter of Bishop Komarica

Page 149

 1     requesting urgent -- that Croats from Vares be urgently rescued.  If

 2     anyone wanted people to remain in their homes, it was the wish of the

 3     Catholic church.  The Chamber failed to consider that Herceg-Bosna

 4     guaranteed the return of property to its rightful owners.  We prevented

 5     any changes of demographic structure during the war by adopting measures

 6     to the effect that everyone should return to their places of domicile as

 7     of 1st of April, 1992.

 8             On top that, my government decided that there should be a ban on

 9     the trade of immovable property during the war, and this is 1D01892,

10     P01580, and P01652.  The Chamber failed to take note that the formation

11     of the Croatian republic was simply an adjustment to -- of the

12     international plan on the union of the three republics and not to implement

13     the alleged JCE.

14             It also failed to take notice that the Muslims established their

15     own Muslim republic of Bosnia in keeping with the same plan, signing an

16     agreement with the Serbian side on the factual dissolution of

17     Bosnia-Herzegovina in September 1993.  It is 1D01436, 1D01778, and

18     4D01040.

19             We can also look at the numerous documents about the decision on

20     joint command.  As of the very moment of

21     its existence, the HVO was a legal component of the armed forces of

22     Bosnia-Herzegovina, and Izetbegovic himself commanded the HVO in trying

23     to lift the siege off Sarajevo.  These were two components of the same

24     armed forces enjoying the same rights under the law when it comes, for

25     example, to pensions, benefits, or commendations.

Page 150

 1             In 2D1183, the law of the Federation, we can read that the overall

 2     war, and I quote, "was a defensive war of liberation/homeland war lasting

 3     from 18th of September, 1991, until the 23rd of December 1995."  Only one

 4     quarter of the overall period was the period when there was any conflict

 5     between the HVO and the ABiH.

 6             Ultimately, the Trial Chamber failed to take note of something

 7     you noticed, Mr. President, that I became the minister of defence of the

 8     ABiH as well, in the first half of '94, following which the two components

 9     carried out decisive liberation operations that brought about peace.

10     Unfortunately, my soldiers too died before that in Srebrenica.

11             [In English] Thank you.

12             JUDGE AGIUS:  Thank you, Mr. Prlic.  We will have a break of

13     15 minutes now, and then I'll give you the floor Mr. Karnavas.

14             Thank you.

15                           --- Recess taken at 10.55 a.m.

16                           --- On resuming at 11.15 a.m.

17             JUDGE AGIUS:  Mr. Karnavas, you have one hour.

18             MR. KARNAVAS:  Thank you very much, Mr. President, Your Honours.

19     And again, good morning to everyone in and around the courtroom.

20             Given that Dr. Prlic went into the weeds, I'm going to do a

21     tour d'horizon demonstrating the gross errors that were committed by the

22     Trial Chamber.

23             That a Trial Chamber would examine all relevant evidence

24     objectively in rendering a judgement is an article of faith that we all

25     accept.  But in this instances, in this particular case, it is manifestly

Page 151

 1     false.  Beneath the surface of the six volumes that the Trial Chamber

 2     produced, you have a pattern of calculated neglect of evidence, abject

 3     disregard of context, and with all due respect, a reckless abandonment of

 4     fairness.

 5             The Trial Chamber committed a number of significant and

 6     systematic errors throughout the trial and in rendering the trial

 7     judgement:  It miss applied the applicable law; it selectively relied the

 8     evidence; it misinterpreted some of the evidence it selected to rely on;

 9     and more chillingly, it ignored relevant evidence which, when considered,

10     invalidates the Trial Chamber's findings of facts and conclusions of law.

11     And that is the crux of our appeal.

12             Effectively, we put on a case, three Judges sat there -- four,

13     actually, they had 26 months to write a judgement, and they ignored the

14     entire Prlic Defence, and this is demonstrated in their judgement.

15             By blatantly and wantonly failing to consider the evidence, the

16     Trial Chamber failed to appreciate that while some evidence may look

17     good, is alluring on the surface, if you scratch beneath it, if you look

18     beneath it, it is far from reliable; while other evidence that may seem

19     unreliable at first glance, when considered in conjunction with other

20     evidence tends to be reliable.

21             And what do I mean by that?  Because we're going to get to some

22     examples.  When a Croat comes and testifies for the Defence, if he says:

23     "I'm acquainted with the accused," that is taken as he is biased, he is

24     untrustworthy, there is no need to consider the evidence from that

25     particular witness, and we see that in the judgement with absolutely no

Page 152

 1     assessment, none whatsoever, of the testimony that they gave to see

 2     whether it stands up to scrutiny.  It's just:  Well, he was acquainted

 3     with the accused and therefore, if we want to translate it, Croat equals

 4     liar if testifying on behalf of the Defence.  That's the crux of our

 5     appeal, Your Honours.

 6             And I -- with all due respect, I understand we are at an

 7     international criminal tribunal, and as President Meron has indicated --

 8     or Judge Meron has indicated when he was president, that we are to uphold

 9     the highest of international standards before this Tribunal, and this

10     Trial Chamber failed, and failed miserably, and failed repeatedly in this

11     particular trial and in the judgement which it took 26 months to create.

12             By misapplying the proper legal standards and proper methodology

13     in assessing the evidence, the Trial Chamber reached erroneous findings

14     of facts and conclusions of law.  They indiscriminantly ignored virtually

15     the entire Prlic Defence, compartmentalising the evidence, assessing it

16     out of context, devoid of other relevant evidence, making uncorroborated

17     pronouncements.

18             In -- the Trial Chamber repeatedly failed to provide -- the Trial

19     Chamber repeatedly failed to provide reasoned opinions, and that's what a

20     judgement is all about.  It's about reasoned opinions.  Why?  Why is that

21     essential?  For two reasons.  One, we have a second instance.  If I don't

22     have a reasoned opinion, how can I possibly point to the Appeals Chamber

23     where the errors are?  And two, how can you, Your Honours, do your job if

24     there are no reasoned opinions as to how a Trial Chamber reached a

25     particular conclusion after supposedly assessing the evidence?

Page 153

 1             What is the purpose - what is the purpose - of the United Nations

 2     providing funds for Defence counsel to represent the accused, because

 3     they have a right to be represented when they cannot afford their own

 4     Defence, provide these facilities, allow us to make a record, a record,

 5     and then disregard the record, take it out of context, cherry pick what

 6     you may in order to fit desired narrative.  That is the crux of our

 7     appeal.

 8             And by the way, Your Honours, while I'm at it, if you look at our

 9     appeal, because we had some -- we had some difficulties in finding -- in

10     the word space.  We were counting words in this particular process.  So

11     you will note that for every assertions that we make, every single

12     assertion, there is a footnote.  And if you look at the footnote, there

13     are citations, page number and lines, and there is no space in between.

14     And the reason for that was because if you have a space if counts as a

15     word.  So we could have 10, 20, 30, citations to the record and only

16     count as one word by not having a space.

17             Now, why was that necessary?  Because we wanted to give you not

18     the haystack but the needles in the haystack in order for you to actually

19     go and see.  Because we submit, Your Honours, that when you look at our

20     appeal brief and when you look at documents that are cited, for every

21     single assertion will you see a footnote, and at -- relevant lines that

22     you need to focus on that establishes the validity of the assertion.

23     Something that we would have expected the Trial Chamber to do when it was

24     supposed to be doing its own job.

25             And now you are faced with a conundrum.  And what is that?  By

Page 154

 1     not having a reasoned opinion, not having reasoned decisions throughout,

 2     just pronouncements, now effectively, what we are asking you to do,

 3     regrettably, is to do a review de novo of 52.967 pages of a trial

 4     transcript, 818 written decisions, 5.926 exhibits.  These were admitted

 5     during the course of the trial.  This is effectively what you have to do,

 6     or at least look at what we cited and the other parties cited in order to

 7     determine whether Trial Chamber properly assessed the evidence.

 8             Yes, there is -- as I said, there is a rebuttable presumption

 9     that the Trial Chamber evaluated all of the evidence.  That goes without

10     saying.  Now, how was it done in this particular case?  Well, if we

11     mention a name, Prlic Defence calls one witness, we'll find a way to put

12     him in some place, maybe on some inconsequential validation of a date

13     that is unrelated to the actual substance of the Trial Chamber;

14     therefore, if we do a word check, we can see, oh, this person was

15     mentioned, ergo, they considered.  They considered the testimony of -- of

16     the witness.  When, in fact, I dare say, Your Honour, with all due

17     respect, that's a subterfuge.  You sprinkle the names, you sprinkle the

18     documents, you don't do a proper assessment but then you can say, well,

19     we did our job.  We assessed the evidence.  And I will show some concrete

20     examples.  It is shocking, it is scandalous.

21             The Trial Chamber erroneously found the existence of a JCE.  The

22     purpose of establishing the HZHB and the HRHB, that's the Croatian

23     community and the Croatian republic -- in fact, when you look at the

24     judgement, they conflate the two.  They don't even know -- at times they

25     get confused themselves.  They don't know what is one and what is the

Page 155

 1     other.  They failed to consider, for instance, that the Croatian Republic

 2     of Herceg-Bosna was established as result of the negotiations that were

 3     ongoing.

 4             By not looking at the evidence, by not assessing the evidence

 5     properly, by not considering what the witnesses were saying, by not

 6     looking at the documents.  They say, oh, this is a continuation of this

 7     joint criminal enterprise that started supposedly back in 1991,

 8     December 27.  They look at a presidential transcript, they focus on one

 9     or two passages out of a 125-page document -- this is before BiH, by the

10     way, is declared independent.  They have a couple of witnesses, one is

11     the so-called expert witness, which I will get to, Ribicic from Slovenia.

12     And they exclude everything else.

13             They don't look at the transcripts.  They don't look at the other

14     presidential transcripts.  They don't look at the other events that

15     follow.  They say, hah, on this date, the Croats are talking about BiH

16     and what may happen.  And if you look at the transcript, there are all

17     sorts of ideas that are being bounced around.  Why?  Why?  The context

18     that we brought in, Your Honours, which the Trial Chamber failed to

19     consider, was at that point in time in history it was unclear whether BiH

20     would survive as a state.  And the issue was if BiH fails, should Croatia

21     take care of its people and its borders.  And that was the discussion.

22             But once BiH declared independence, the first country to

23     recognise BiH was Croatia.  Croatia was pumping in the arms.  In fact,

24     the Mujahedin came through Croatia.  Arms, humanitarian, the refugees

25     that were bringing in, all of this was coming from Croatia.  Why would

Page 156

 1     you arm the ABiH when arms go all over the place if, at the same time,

 2     the objective is to exterminate the Muslims or ethnically cleanse them

 3     from a particular area?  It doesn't make sense.  Yet, the Trial Chamber

 4     never bothered to take that into consideration.  They disregarded the

 5     evidence on all of that.

 6             They failed to look at the critical documents on how the Croatian

 7     community of Herceg-Bosna was established.  They failed to take into

 8     context what was happening in situ at the time.  Central bank isn't

 9     functioning.  We brought in a witness.  Was that considered?  No.  The

10     electoral grid wasn't working?  Why is that important?  Well, without a

11     payment bureau system, the money cannot go around.  The municipalities

12     are trapped on their own, and now they have to fend for themselves.

13             And what do the Croats do that is so evil, so malevolent, so

14     criminal?  They do the same thing that the Muslims do in the

15     Muslim-dominated municipalities, because everyone had to fend for

16     themselves.  In fact, every municipality set up its own Territorial

17     Defence based on the All People's Defence, and they were supposed to take

18     care of themselves.  Who was going to pay the salaries?  Who was going to

19     keep schools open?  Who is going to pick up the garbage?  Who is going to

20     pay pensions?  Who was going to take care of anyone?

21             The Prosecution's theory was, well, they're Croatising

22     everything.  And while the Trial Chamber didn't go that far, they

23     certainly disregarded all of this relevant evidence that we brought in

24     contextually.  We brought in an expert, Cvikl, in order to show, at least

25     to educate, to educate the members of the Trial Chamber what the system

Page 157

 1     was and how it evolved.

 2             JUDGE AGIUS:  Yes, Mr. Karnavas, sorry to interrupt you.  But,

 3     Registrar, could you please make sure that they stop this drilling

 4     because it's annoying me and it is disturbing everyone here.  I'm sure it

 5     is disturbing everyone.  All right?  Until we are sitting, they have to

 6     hold it, okay?  Thank you.

 7             Yes, my apologies to you Mr. Karnavas.  You may proceed, thank

 8     you.

 9             MR. KARNAVAS:  No problem.  I hadn't even noticed it, to be

10     honest.  But now that you point it out, I'm aware of it.

11             JUDGE AGIUS:  That's why you haven't become a Judge as yet.

12             MR. KARNAVAS:  I don't think I have the judicial temperament,

13     Your Honour, with all due respect.  I'd love to be one but I'm not

14     qualified from that perspective.

15             What we're seeing, Your Honours, is that no reasonable Trial

16     Chamber could have reached the conclusions that they reached because they

17     ignored virtually the entire Defence case.  And it was necessary to look

18     at how the Croatian community of Herceg-Bosna was set up to start with,

19     what was happening, and why was it set up.

20             But by ignoring the evidence, the Trial Chamber manufactured a

21     false narrative, and a false narrative is that Dr. Prlic was at the

22     political apex with boundless authority over political, social,

23     humanitarian, and military matters in the areas that were designated as a

24     Croatian community and the Croatian Republic of Herceg-Bosna.  And

25     that -- in that position, he made a substantial contribution to the joint

Page 158

 1     criminal enterprise which, according to the Trial Chamber, began back in,

 2     the genesis of it, the germination of it, was in 27 December, 1991.

 3     Failing to take into account everything else that goes on including, for

 4     instance, the Friendship and Co-Operation Agreement between Croatia and

 5     Bosnia-Herzegovina.  Tudjman and Izetbegovic.

 6             As soon as BiH is declared independent, the two leaders meet,

 7     they enter into this agreement.  And if you look at the purpose of it was

 8     to find a way to organise the internal affairs, the internal

 9     administrative affairs of Bosnia-Herzegovina.

10             Now, why was this critical?  And this is something that was lost

11     on the Trial Chamber.  They don't recognise it, at least not when it

12     comes to the Croats.  You have three constituent nations or peoples in

13     Bosnia-Herzegovina.  That was always recognised.  That was always

14     recognised before the war and during the war.  But there's one catch for

15     the Croats:  They're in the minority, and they're always going to be in

16     the minority.  They're 17.2 or .3 per cent at the time.

17             So how do you organise the internal affairs of Bosnia-Herzegovina

18     so you don't have the one person, one vote?  Because if the Muslims, now

19     called Bosniaks, are in the majority, they control everything.  They

20     control the president, they control the Assembly.  They can have -- fill

21     in all the administrative positions.  But by recognising the -- that you

22     have three constituent nations, not minorities but nations, they have to

23     share in the administration of Bosnia-Herzegovina.

24             Now we saw something just last week, for instance, two weeks ago,

25     when Izetbegovic, the son of Alija, who inherited the father's throne of

Page 159

 1     the party, he goes to the International Court of Justice just down the

 2     street and he files a request for the reconsideration of a decision that

 3     was made by the International Court of Justice.  Now, the problem is --

 4     and he appoints someone as if that person is the agent of

 5     Bosnia-Herzegovina.  We have an international who joins him -- or two

 6     internationals, one of them is it Shepard, David Sheppard [phoen] who is

 7     an American former ambassador, who ought to know better because he

 8     represented himself as being the deputy agent and --

 9             JUDGE AGIUS:  Stick to this case, Mr. Karnavas.

10             MR. KARNAVAS:  I'm making a point, Your Honour.  The point is

11     that the Trial Chamber disregarded, disregarded the evidence that the

12     Croats wanted to make sure that their rights were protected.  And you

13     have the Cutileiro Plan, you have the Vance-Owen Plan, you have the

14     Owen-Stoltenberg Plan, and so on, and all were basically of the same

15     milieu.  The Trial Chamber never considered that the Croats never

16     presented a single plan or single map where they were arguing or claiming

17     that this area or territory belonged to them.  The maps and the plans

18     came from the internationals.  They didn't come from the Croats.  And

19     that was the whole point of the January 15 decision, which I'm going to

20     get to in a second.

21             Why is that important?  And it's important for your question 4

22     but also in general with respect to the JCE.  The Vance-Owen Peace Plan

23     kicks in sort of towards the end of 1992.  In January, beginning of

24     January, I believe it's the 2nd, and then again on the 10th, there are

25     Plenary Sessions in Geneva, where the plan already is out, and it talks

Page 160

 1     about you're going to have seven to ten provinces, and depending on who

 2     is in the majority in those provinces they will be allocated.  So I

 3     believe it was 3, 8, and 10 were going to be allocated, for

 4     administrative purposes, to the Croats.  In other words, they would have

 5     ability to administer those provinces.  It did not call for ethnic

 6     cleansing.  None of the international plans, starting from Cutileiro,

 7     ever called for carving up or ethnic cleansing or movement of

 8     populations.  Be that as it may, that's around the 2nd to the 10th the

 9     plan is being discussed.

10             Meanwhile, for whatever reason, around the 2nd or 3rd in the area

11     of Gornji Vakuf there is a scrimmage.  There's some fighting going on.

12     And it's localised.  It's over the flag, over new years, whatever the

13     case may be.  Some drinking.  But by the 11th, by the 11th of January,

14     these two parts of the forces of -- of BiH, because at this point,

15     remember, you have the Friendship and Co-operation Agreement which says

16     that the ABiH, the Army of BiH, and the HVO are integral parts of the

17     armed forces of Bosnia-Herzegovina.  And so now in this localised area,

18     you have two components of those two forces who are going at each other

19     on the 11th, and it looks like it's going to escalate.  And there's a

20     need to find a solution.

21             So after on January 15 or 14 when they were in Geneva,

22     Izetbegovic travels to Zagreb and there's a meeting with Tudjman,

23     Izetbegovic, and there's Susak there, Praljak I believe was also there,

24     and there there's an agreement that is reached.  And it's the Zagreb

25     Agreement.  And based on the Zagreb Agreement, the HVO will subordinate

Page 161

 1     itself in the Muslim-dominated areas and vice versa, the BiH will

 2     subordinate itself, you know, to the HVO in the Croat-dominated areas.

 3     That's the agreement.

 4             Praljak gets this and travels from Zagreb to Mostar, and I

 5     believe most of Your Honours have been there, have travelled there at one

 6     point or another.  When General Praljak leaves, the agreement is what it

 7     is.  Now, whether Izetbegovic changed his mind later on, who knows.  But

 8     when General Praljak arrives in Mostar, he provides -- he shows them the

 9     agreement.  And based on that you could say, effectively, Boban is

10     ordering, as he did later on on the 20th, for an extraordinary session so

11     that this agreement could be implemented.  Why?  Why?  Because there was

12     fighting going on and it was getting out of control in Gornji Vakuf.

13             That is the critical aspect.  That is why the January 15, 1993,

14     Zagreb Agreement, and then which led into the decision, and then the

15     following orders.  If you look at the orders, Your Honour, you don't see

16     anything that followed the decision.  You don't see anything about --

17     that would lead you to believe that this was an ultimatum.  This was all

18     made up.  This is a nice phrase, "it's the ultimatum."  Ultimatum on

19     what?  Because by the 20th, Boban issues another order:  Withdraw that.

20     But how do you make the linkage?

21             Because remember in the judgement the Trial Chamber says you have

22     the -- you have the JCE starting as of 27 -- or the common plan that

23     we're going to reconstitute the borders of Banovina 1939 either so that

24     Croatia takes this part or it becomes sort of a mini state, a state

25     within a state.  This starts in December 27, 1991.

Page 162

 1             How do you connect, how do you link that with the decision of

 2     15 January 1993?  There's no linkage.  That decision is based on the

 3     Zagreb Agreement, which is based on the fighting that's going on in situ.

 4     Where is -- I mean, what part of that did the Trial Chamber not get?

 5     Because we presented copious evidence as to what was happening, why it

 6     was happening.  In fact, we brought in a witness, Batinic.  And what did

 7     they say about him?  Let me get to him right away since I'm talking about

 8     him, because this is kind of fascinating.  This tells you a little bit

 9     about what we had to face in this particular trial.

10             With Batinic, who was in Gornji Vakuf at the time when this

11     fighting was happening, and he comes and he testifies.  He was here four

12     days.  The Trial Chamber claim that it would explain that he did not -- I

13     mean, here it is.  They observed that:

14             "Although his testimony appeared to lack credibility on certain

15     points..." On certain points.  Which points?  We never know.  "...

16     particularly concerning the role of the HVO..."  Okay.  "... in the

17     criminal events alleged to have an occurred in 1993."  Well, which part?

18     Where?

19             Where was the assessment?  Where was he found not credible?  Give

20     us an example of what he said or one document he was shown or something

21     that you could say he is not credible because it's either his own

22     imagination and there's no independent indicia of reliability, or there's

23     all this other evidence that shows that what he say is not credible.

24     Nothing, zero.  That's the extent of the evaluation of the analysis of

25     this particular witness who was in situ talking about Gornji Vakuf in

Page 163

 1     relation to the 15 January, 1993 decision, which feeds in right into your

 2     question 4 in its entirety.

 3             JUDGE AGIUS:  Chapter and verse, please.

 4             MR. KARNAVAS:  Chapter and verse.  This is in volume 2,

 5     paragraph 308.  That is where this comes from the transcript.

 6             JUDGE AGIUS:  Thank you.

 7             MR. KARNAVAS:  And, Your Honours, this is in Ground 2.  I invite

 8     your close scrutiny and attention, your close scrutiny and attention to

 9     that particular Ground because we point out, since I'm at it I might as

10     well go for it, we point out all of the missed opportunities that the

11     Trial Chamber had in trying to connect our evidence to the alleged crimes

12     in the indictment.

13             Because, for instance, with Perkovic, and this is far -- and this

14     is from far too many paragraphs, but I've listed on him, and it's in

15     Ground 2, there are 17 different areas which he spoke of that are

16     completely ignored.  Tomic has 22.  Now we get to Buntic, who was invited

17     by the Trial Chamber to stay extra, this was a man that was dying of

18     cancer and passed away, regrettably, shortly thereafter.  Yet he came

19     here with the expectation that he would testify four days like everybody

20     else and I believe he testified nine days.

21             Now, let's just see what they do with him.  And this is in

22     volume 1, para 511, footnote 1246.  The Trial Chamber claimed that, "it

23     would explain that it did not find Zoran Buntic's testimony concerning

24     the structure of HZ HB very credible."  That was it.

25             "It would explain."  Well, I looked, I looked, and I looked in

Page 164

 1     the six volumes.  And not only is his testimony primarily ignored

 2     completely, but they never make an assessment or they never explain

 3     anywhere why they didn't find his testimony credible.  What parts of it

 4     they didn't find credible.  Based on what evidence they didn't find it

 5     credible?

 6             I'll give you one more example because if we were to go through

 7     the Trial Chamber, I would need about a week to go through that to show

 8     you all the missed opportunities and errors that they created.

 9             The other one is Zelenika, another critical witness for us.  He

10     came and testified.  I believe he was here four days.

11             "Broadly speaking, the Chamber disregarded the testimony of

12     witnesses whose credibility seemed doubtful throughout the session."

13             This is a general statement now, "broadly speaking."

14             Now, what does that mean?  How can you take make an assessment,

15     Your Honour, on whether somebody's testimony was actually considered when

16     you have such a lame, with all due respect, pronouncement that, broadly

17     speaking, they disregarded those whose credibility seemed doubtful.

18     Based on what?

19             For example, now, now we are going to get the example regarding

20     Mirko Zelenika, in relation to whom the Chamber found that only some

21     documents tendered through him in the hearing and subsequently admitted

22     carried probative value.  That's in volume 1, paragraph 286.  So that is

23     the extent of the evaluation.

24             Now, he testified.  Can I just say that some of the documents

25     were not -- did not have the probative value that they would have liked.

Page 165

 1     Which documents are they?  Pertaining to what issues?  And what on God's

 2     earth does a document have to do with his testimony?  Because he came and

 3     he testified about events, what he saw, what he perceived, what he did.

 4     What about his testimony?  Why was his testimony not evaluated or

 5     assessed?  And which documents did they assess where they found to have

 6     carried little probative value?

 7             This is not, Your Honours, I dare say, a transparent way of

 8     evaluating and assessing the evidence.  And we point out in the Ground 2

 9     that they did this systematically with 18 of our witnesses, and we have

10     chapter and verse, page and line.  You have it all.  That's why I don't

11     want to spend what little time I have - and you have been generous - but

12     I don't want to spend my time saying how many errors were made because

13     there's so many of them.

14             But let's go to the OTP witnesses because we just heard that with

15     Batinic at least, they didn't want to consider him because he was too

16     close to the accused.

17             Now we get to Tomljanovich, the Prosecution's own expert analyst,

18     call him what you will.  Tomljanovich testified for several days.  It was

19     more than a week.  Now, it's interesting that Tomljanovich works for the

20     OTP, works for them for several years, I believe since 1999.  I could be

21     wrong on the date, but he worked for them for many years, and he helped

22     prepare -- he helped question witnesses.  He helped prepare the drafting

23     of the indictment, and then after drafting the indictment, guess what?

24     He writes his expert report.

25             Now, tell me that's not confirmation bias.  Would he dare write

Page 166

 1     something other than to support the indictment that he first helped write

 2     and also to assist his paymaster, the OTP.  This is their analyst.  He

 3     testified.  I cross-examined him.  And it was a delight.  And I invite

 4     you -- you know, I invite your close scrutiny and attention to that part

 5     of the transcript, because by the end of his testimony, he lacks

 6     credibility completely.  He demonstrates a profound ignorance of that

 7     which he claimed to have in order to write about the creation and the

 8     establishment of the Croatian Community of Herceg-Bosna.

 9             And what do we see?  Do we see in the judgement anything about,

10     well, they considered the fact that he was an OTP but nonetheless they

11     found him credible because of X, Y, Z?  No.  Not a mention.  Zero.  Not

12     only that.  What's curious about this, this OTP employee, they don't

13     mention, not one iota, his testimony.  Not one iota.  But his entire

14     report comes in.  They reference his report.

15             Where is the analysis?  Where is -- where is the assessment that

16     based on the testimony, based on his close association -- I point to that

17     because you see a double standard.  One standard for Defence witnesses;

18     if they're closely associated with the accused, they must lack

19     credibility.  But someone who is an employee of the Prosecution, they

20     don't factor that into the analysis and we submit that that is utterly

21     unfair.

22             Ribicic was another example.  He came in as an expert witness.

23     He had testified in Kordic.  In Kordic he had prepared a report.  He had

24     prepared a report which was later on turned into a book, and the thesis

25     was that the Croatian Community, then Croatian Republic of Herceg-Bosna,

Page 167

 1     were a mini-state, and so on and so forth.

 2             Part of his -- part of his analysis or, I would say, the primary

 3     factor of his -- the tipping point was, reading the presidential

 4     transcript of 19 -- of 27 December 1991, he says this.  His evidence,

 5     it's there for everyone to see.

 6             Now, at that point when he wrote that report for Kordic, that was

 7     the only transcript -- there may have one or two other transcripts

 8     available.  Later on, a lot of the presidential transcripts, Tudjman's

 9     recordings, became available - became available - meaning that by the

10     time he comes to testify in this particular case, they're available to

11     the public.  The Prosecution has them.

12             Do you think that the Prosecutor might ask him, Hey, by the way,

13     don't you think you ought to review these other transcripts to see

14     whether you would change your mind?  No.  Not one bit.  Is that factored

15     into the Trial Chamber's analysis of Ribicic?  No.  But they accept his

16     report from Kordic.  We submit that that is improper, that is not the

17     sort of -- an analysis and scrutiny that one would use in going through

18     the evidence presented to them in order to find a proper decision.

19             Your Honour, Mr. President, how much time do I have left?  Sorry

20     to trouble you.

21             JUDGE AGIUS:  I will tell you.

22             MR. KARNAVAS:  Half an hour?

23             JUDGE AGIUS:  You have 14 minutes.

24             MR. KARNAVAS:  Okay.  Thank you.

25             JUDGE AGIUS:  Yes.

Page 168

 1             MR. KARNAVAS:  All right.  Well, I tried.  Thank you.

 2             JUDGE AGIUS:  Sorry, 24.

 3             MR. KARNAVAS:  Wonderful.  Wonderful.  Thank you very much.  I

 4     thought so -- my watch was --

 5             JUDGE AGIUS:  Oh, no, 24 minutes.

 6             MR. KARNAVAS:  Okay.  Good.  Good.

 7             Your Honour, context is important, and the Trial Chamber erred

 8     massively and repeatedly and they erred unjustifiably.

 9             Now, why was context important?  Because when you take something

10     out of context, when you don't look at the historical, the political, the

11     social context in which events are taking place, you cannot reach the

12     proper conclusion.  You cannot just assess the evidence in a vacuum.

13             These cases are not your typical cases of street crime back home.

14     There was a lot of things at play.  And so when you're going to say that

15     by organising yourself, a peoples -- constituent peoples organising

16     themselves in areas where they are living when the state doesn't have a

17     functioning banking system, doesn't have a functioning electrical system,

18     nothing is being paid, they don't have a defence to speak of, parts of

19     the country are cut off, and to say that that somehow has some nefarious

20     purposes behind it without looking at the entire context, you're missing

21     the point.  And that's what happened here.  They compartmentalise the

22     evidence.  Now, I don't know whether it was done intentional, whether

23     they were unable to do it.  Maybe they just didn't want to do it.  But

24     the bottom line is they had 26 months to get it right.  They had 26

25     months.

Page 169

 1             And we did the same thing, by the way, that we did with the

 2     Appeals Chamber, lest there be any mistakes.  We like to give the

 3     needles, not the haystack.  In fact, in my closing argument, my client

 4     was furious with me because I didn't do a fire and brimstone-type of

 5     closing argument, nothing to move the Chamber to tears, or what have you.

 6     Instead what I did was I went to the particular issues and I pointed out

 7     to the Trial Chamber where -- which documents they needed to look at in

 8     order to reach the right conclusion.

 9             After that, Dr. Prlic, in the end, you saw -- you heard what he

10     said earlier.  In his allocution, he said, Just look at everything.  Look

11     at the evidence.  Assess it properly.  It was not done in this particular

12     case, Your Honour.  You cannot say with any degree of credibility that

13     this was a reasoned opinion.  And I indicated why we need reasoned

14     opinions.

15             You're not expected to do a de novo review, nor did I say are

16     you -- can you do it in a sense because then you would substituting your

17     evaluation of the evidence.  That's not what an Appeals Chamber is for.

18     You can look at the evidence that was missed and say, Yeah, well, someone

19     can come with another alternative explanation, and that's what we did.

20     We pointed out to the evidence in -- that was considered, that was in the

21     record, and said based on this, if you look at all of this evidence, no

22     trier of fact could come to this conclusion.

23             And, by the way, the alternative plausible explanations,

24     alternative plausible conclusions that you can reach which show that

25     Dr. Prlic was not a member of a JCE, there was no JCE, and certainly when

Page 170

 1     it comes to the January 15th decision, that decision had nothing to do

 2     with what was happening in Gornji Vakuf or what happened on or about the

 3     18th or 19th of January, 1993.

 4             And to suggest that somehow - somehow - Praljak travels from

 5     Zagreb, he comes to Mostar with this decision, with this agreement, and

 6     now the Croatian Community of Herceg-Bosna, these folks that were sitting

 7     there that have no power over the military, they can't order anybody,

 8     okay, they seized the moment.  They sized the moment by, Let's implement

 9     the joint criminal enterprise.  That's what the Trial Chamber is

10     suggesting with its decision of January 15, 1993.  It is ridiculous.  It

11     is utterly ridiculous.

12             No trier of fact can come to that conclusion if you go beyond the

13     surface and actually look at the evidence, look at it carefully, and not

14     do what the Prosecution has suggested which is, well, just toss out all

15     of Prlic's claims because, you know, the Trial Chamber has already

16     established that.  Yes, we know the Trial Chamber established it.  But

17     how?  How was it established?

18             I want to talk a little bit about the Mladic diaries because it's

19     another vignette, I would say.

20             Mladic is at large.  He's hiding all over the place, but they

21     finally manage to get control over his diaries.  And this is after the

22     conclusion of the trial, or most of the evidence, so the Prosecution

23     moves to re-open the evidence in order to bring portions of the Mladic

24     diary.  All right.  We fought it.  But we said, Okay, if you allow that

25     in, those sections to come in, we want as well, keeping in mind that they

Page 171

 1     have the burden of proof.

 2             We've demonstrated, Your Honours, and I think the record is

 3     rather clear - you make up your minds - whether we were diligent or not

 4     diligent, and I dare say we were diligent.  We were excessively diligent.

 5     We pointed out the sections of the Mladic diaries that we wanted in.

 6             Judge Antonetti, for all his faults - and he had many of them

 7     during the trial; I'm not going to sugar-coat it - in that instance he

 8     went through every portion of the diary that we wanted and he assessed

 9     it, and he said yes.  I think we got almost 90 per cent of what we asked.

10     He said, There's a reason why I would allow this to come in.  It's

11     reasonable.  It's appropriate.  It rebuts what the Prosecution says.  We

12     should at least consider it.  The other two, the other two said no.

13     Okay.

14             Now, what's wrong with the Mladic's diaries?  Aside from

15     giving -- letting the Prosecutor use it and not letting the Defence,

16     aside from that there's one passage in the Mladic diary.  Now, remember,

17     Mladic is out there.  He's writing things and nobody can seriously know

18     whether he is being truthful, even in his diary because -- and the diary

19     is hearsay.  He is not here.  It's an out-of-court statement offered for

20     the truth, where supposedly General Praljak says, We're going for

21     Banovina 39, or just Banovina.  Of course that affects us because we're

22     part of this joint criminal enterprise.

23             General Praljak wants to testify.  He says, Look, I'm available.

24     I want to testify.  I want to give evidence on this issue, what happened.

25     He was there.  He was present.  He spoke.  He had testified already.

Page 172

 1     What did the majority say?  This is a shocker now.  I'm glad you're

 2     sitting.  Because they say:  The lawyers can address it in their final

 3     brief or in their closing argument.  The lawyers can address what General

 4     Praljak has to say in their closing argument or their final brief.

 5             One of the Judges authored the book "Human Rights in Criminal

 6     Procedure."  That same author was a Professor of Law and Procedure in the

 7     University of Zurich.  That same author was President of the European

 8     Commission of Human Rights.  Now, anyone who takes a basic course - a

 9     basic course - in trial advocacy knows that what comes out of the mouth

10     of a lawyer, like me, for instance, right now, is not evidence.  I wish

11     it were but it's not evidence.

12             So when a lawyer is asked to testify on behalf of the client,

13     when the client is saying, Hey, I've got rights, I want to give evidence.

14     And my client -- my client's fate hangs in the balance and they say,

15     Well, have the lawyer give evidence.  That is so scandalous it's beyond

16     the pale.

17             So when you look at this, this is a good example of how can you

18     possibly say, Oh, and by the way, this whole bit about what Praljak said

19     and the Banovina and all of that, that comes in -- that's in the

20     judgement.  We see it in the judgement.  So not only are we deprived of

21     our right to confront a witness, a major violation of Dr. Prlic's human

22     rights; but at the same time they use this out-of-court, unsubstantiated

23     hearsay piece of evidence in support of their theory, the Prosecution's

24     theory, of this joint criminal enterprise, and that somehow 1991 -- I

25     believe this even happened in 1992, that they are all connected, that we

Page 173

 1     can connect the dots.  And this is a representation of Dr. Prlic having a

 2     lot power, being close to the government, and furthering this plan, which

 3     ultimately becomes the criminal plan, starting with January 15, 1993.

 4             This is not assessment of evidence, Your Honours.  This is not a

 5     fair trial.  These are errors - these are errors - that one would not

 6     expect of a Trial Chamber in an international criminal tribunal.  This

 7     trial was five years in the making.

 8             Now, of course, you could say, Well, all right, if we throw joint

 9     criminal enterprise out the door, what are we left with?  Maybe we can do

10     an assessment and to revise and to look into other modes of liability.

11     It's been -- you know, that topic has come up in the past.  Well, I dare

12     say, as I did earlier, that's not really much of an option.  And you've

13     already discussed this.  I know Judge Meron has commented on it in the

14     Gotovina decision; Judge Robinson has also commented on it.

15             And also a new trial would not help either.  Having a new trial,

16     when you had five years of a trial already, the accused have already been

17     in -- the appellants, my client, has already been in ten years or more.

18     The next trial is going to take another five years.  The Dutch government

19     won't allow anybody to be provisionally released while they're in the

20     Netherlands, if you're from the ICTY, because that was the -- that's the

21     agreement.  It would be cruel and unusual punishment, actually, to go

22     through a new trial, and frankly I don't know if I have the stamina to go

23     through another trial.  So I don't think that alternative modes of

24     liability is a solution or a new trial.  The only solution that you have

25     is to reverse, because the errors are systematic and they're massive.

Page 174

 1             Now, I have a little bit of time left so I want to talk just very

 2     briefly about the Siljeg -- this is part of 4(c)(i), I believe, the

 3     Siljeg reports.  These came in through bar table.  The Prosecutor

 4     questioned Siljeg prior to the trial, pre-trial.  He was available.  They

 5     never called him as a witness.  They never called him as a witness.

 6             The Trial Chamber never reached out to call him as a witness, to

 7     see whether he could explain, Why would you send these reports to the

 8     Croatian Community of Herceg-Bosna.  What is the connection?  Are you

 9     subordinated to them?  There is not one shred of evidence that shows,

10     nothing that shows, that he had a responsibility to report to them or

11     they had any authority over him.  More importantly, there's no evidence,

12     Your Honours.  There's no evidence that those reports ever made it to the

13     Croatian Community of Herceg-Bosna.

14             You have to remember the conditions at the time, and you don't

15     have any discussions of those reports during the meetings of the

16     government.  So I dare say trying to connect the Siljeg to Dr. Prlic or

17     the HVO HZHB, there's no linkage.

18             The Prosecution has the burden of proof.  The witness was

19     available.  They questioned the witness repeatedly.  They chose, they

20     chose, they chose to introduce the evidence through the bar table and not

21     to bring the witness in.  They could have brought him in and they could

22     have asked him two or three questions, and we would have had our

23     opportunity to cross-examine him.  But to bring in this hearsay evidence

24     and say, There is linkage, when there is not even one shred of evidence

25     that that document -- those documents, those reports, actually made it

Page 175

 1     into the HVO, there is no independent indicia of reliability in order to

 2     make a finding on that.  So based on that, you have to just ignore it.

 3             Finally, on question 10.  It's an interesting question,

 4     interesting in the sense that here we are, I don't know, nearly 20 years

 5     after joint criminal enterprise came into existence, and we're still

 6     trying to figure out is it possible or is it probable.  We're still

 7     trying to figure out the contours.  Where are we with joint criminal

 8     enterprise, at least with three, the most contentious one of this mode of

 9     liability.

10             Now, I don't want to go into the heretical and just remind you

11     that the Supreme Court of the Extraordinary Chambers in the Courts of

12     Cambodia, where Justice Mumba, previously Judge Mumba, who sat on the

13     Appeals Chamber in Tadic, agreed with the majority that JCE3 is not

14     included in customary international law.

15             I just thought I'd throw that out.  I know it's heretical, and

16     maybe you don't want to hear it, but I have to say it.  And I've been

17     meaning to say it and now I have had the opportunity to say it --

18             JUDGE AGIUS:  You already said it in your brief, actually.

19             MR. KARNAVAS:  Let me point out, Mr. President and Your Honours,

20     that there's always been this contention, where are the parameters, how

21     far can you extend it.

22             In Brdjanin, as you may recall - you were the Trial Judge,

23     President of the Trial Chamber at the time - there was that issue where

24     Joanna Korner, QC, took a bold step and said, Well, if you're outside the

25     JCE as a physical perpetrator, you can't be -- someone cannot be

Page 176

 1     involved with -- cannot be charged for those events.  The Appeals Chamber

 2     reversed on that.  That caused a bunch of jurisprudence to come out.

 3             But be that as it may - be that as it may - even Cassese, the

 4     late Cassese, the late Professor Cassese, who has blessed us with this

 5     joint criminal enterprise, or cursed us with it, had come to the

 6     conclusion that highly likely -- so when we're talking about

 7     foreseeability, it has to be highly likely.  We're now in the realm of

 8     probability.  We're in the realm of probability.

 9             Now, I know if you look at the Gotovina judgement, you talk

10     about, you say, you, the Appeals Chamber, says "possible."  So there's

11     seems to be -- the jurisprudence seems to go to "possible" and yet there

12     this flavour out there that it can't be so extended and so I think the

13     Trial Chamber here took a valiant effort in saying it is probable as

14     opposed to possible because that's one way of containing this

15     far-reaching -- because anything is possible.  It's like one of those

16     commercials where you see somebody dropping something and then 20 steps

17     later, some catastrophe occurs.  That's joint criminal enterprise.

18             You know, I'm reminded of being a young lawyer questioning a

19     forensic pathologist.  I was told that you have to raise doubt.  So I'm

20     asking him, Isn't this possible?  Isn't this possible?  And he's saying,

21     Yes, yes, yes.  Finally, after about the fifth or sixth time, the doctor

22     got upset with me.  He was annoyed.  He said, You're not asking me the

23     right question.  I paused.  I didn't know what to do.  I was told not to

24     ask a question I didn't know the answer to.  And the medical examiner

25     then volunteered, Ask me if it's probable, at which point I sat down.

Page 177

 1             What's the point?  Anything is possible, but is it probable.  But

 2     even if you go with the fact that it's possible, now the question is,

 3     what do you do about it?  We submit, Your Honours, that you must examine

 4     all of the evidence.  It's not a matter of saying, Well, they acquitted

 5     here so now let's convict.  You have to assess the evidence, and we

 6     submit that you have to go beyond the evidence that was actually looked

 7     at by the Trial Chamber, although Judge Robinson reminds us that were you

 8     to do a re-evaluation to see other modes of liability or a re-trial on a

 9     re-evaluation, you could only do so based on the evidence that was

10     considered by the Trial Chamber and not go beyond.

11             We are suggesting that unless you go beyond what was evaluated by

12     the Trial Chamber, you cannot see the massive amounts of errors and the

13     huge injustice that was done in this particular case, not just to my

14     client but to all of the clients.  And that's why, with all due respect,

15     it would be a courageous decision on your part if you decided not to look

16     at the legacy of the Tribunal and say, Well, you know, what would it look

17     like if, after five years of trial and all this money spent, we decided

18     that we have to acquit?  What would they say?  They would say, This is a

19     Tribunal that has credibility.

20             When somebody is accused or is convicted of capital punishment in

21     the United States where they like to kill people - okay, we have lots of

22     states that have the death penalty - and we have somebody who is right on

23     death row, his head is shaved, and all of a sudden in comes a DNA result

24     that has been hidden.  The state doesn't say, You know what?  We're going

25     to be embarrassed; maybe we'll even going to be sued.  Let's fry the

Page 178

 1     person.  Put him on sparky.  No.  What do they do?  They stop the

 2     proceedings.  Even if it -- somebody has been incarcerated 30 years and

 3     there's a potential lawsuit against the state, that's the right thing to

 4     do.

 5             And the only right thing to do, Your Honours, in this particular

 6     case, with all due respect to the Judges in the previous case, is to take

 7     the judgement and throw it in the trash bin.  That's the only thing that

 8     you can do.  Otherwise, you have to look at -- I have four minutes.

 9     Okay.  Otherwise, you have to do an assessment of the entire case.

10             Now, I'm going to surprise you, Mr. President, but I think I'm

11     through with my presentation.  I can talk for another four minutes

12     because I'm a lawyer, but I think I've said everything that needs to be

13     said in this particular case.  I apologise if I was a little disjointed

14     because of last-minute alterations of my presentation.  But I think you

15     heard from Dr. Prlic, he gave you the specifics; I gave you the

16     tour d'horizon.  Take both of them, look at our briefs, look at our

17     appeal brief, look at our response, look at our reply, look at the

18     footnotes, and therein lies a reversal.

19             Thank you.

20             JUDGE AGIUS:  Thank you.

21             Prosecution response.  You have one hour.  And then you continue

22     after the break.

23             MR. STRINGER:  Okay.  So we will go one hour, then, because it

24     looks like we're about 15 minutes behind.  Very well.

25             JUDGE AGIUS:  Unless you prefer to stop at 1.00, just the same.

Page 179

 1                           [Trial Chamber confers]

 2             JUDGE AGIUS:  I think it would be better, no?  I think it would

 3     be better for everyone if you stop at 1300.  That's 1.00.

 4             MR. STRINGER:  Yes.

 5             JUDGE AGIUS:  And then you will get the 15 minutes later.  Yes,

 6     thank you.

 7             MR. STRINGER:  Very well, Mr. President.  And good morning again

 8     to you, Mr. President, Your Honours.  May it please the Court.  Oh, it is

 9     just the afternoon.  Okay.  The day is flying.

10             Although the week's proceedings have been organised for

11     individual submissions by each of the appellants, this is, after all, one

12     single case.  The vast bulk of the crimes were committed as part of a

13     single undertaking, the joint criminal enterprise, to achieve a single

14     goal or purpose, the establishment of a Croat-dominated territory on the

15     territory of Bosnia-Herzegovina, what's called the Croatian Community,

16     later the Croatian Republic of Herceg-Bosna.

17             And so, Your Honours, before responding to the various -- the

18     many arguments and grounds raised by Mr. Prlic today as well as the other

19     appellants in the coming week, the Prosecution, I would like to first

20     address the overall pattern of crimes, the ultimate purpose behind it

21     all, and why achieving the ultimate purpose led to the criminal

22     enterprise that binds all of these appellants together into a single

23     case, although I will indeed be responding to various points raised

24     already in today's submissions by Mr. Prlic.

25             This will take about 20 to 25 minutes and then I'll turn the

Page 180

 1     floor over to my colleague Ms. Gustafson who will respond to the Prlic

 2     appeal itself and to several of the Appeals Chamber's questions as well.

 3             Mr. President, Your Honours, the Trial Chamber found that these

 4     appellants, exercising their roles and functions within the political and

 5     military structures of Herceg-Bosna, are responsible for a multitude of

 6     crimes directed against the Muslim population living there during the

 7     period of the joint criminal enterprise, January 1993 to April 1994.

 8     These crimes followed a "clear pattern of conduct" intended to

 9     "ethnically cleanse" the Muslims, to change the ethnic composition of

10     Herceg-Bosna.  That's volume 4, paragraphs 65 and 44.

11             Your Honours, the findings of the Trial Chamber are sound.

12     They're amply supported by the evidence of hundreds of victims and

13     eyewitnesses, a huge body of documentary evidence, and by the evidence of

14     many international representatives who told the Trial Chamber what they

15     saw on the ground in Herceg-Bosna and what they heard in their meetings

16     with those responsible.

17             THE INTERPRETER:  Kindly slow down for the interpretation.  Thank

18     you.

19             MR. STRINGER:  The Trial Chamber's findings on the joint criminal

20     enterprise and how the numerous crimes proven at trial fit within it are

21     set out in paragraphs 45 through 64 of volume 4.  The pattern makes clear

22     the goal of changing Herceg-Bosna's borders -- sorry, Herceg-Bosna's

23     ethnic composition through crimes.

24             It started in January of 1993 in Gornji Vakuf.  The international

25     community had just proposed the Vance-Owen Peace Plan in an attempt to

Page 181

 1     resolve the conflict in Bosnia-Herzegovina.  My friend Mr. Karnavas said

 2     earlier it was January 1992.  It might have been a misstatement.  I know

 3     he is aware it was January 1993.

 4             The plan attributed different parts of BiH, called provinces, to

 5     each of the three ethnic groups - Croats, Serbs and Muslims - but

 6     protected the rights -- shall I continue, Mr. President?

 7             JUDGE AGIUS:  Yes.  It is an only a momentary absence of

 8     Judge Meron.

 9             MR. STRINGER:  To each of the three ethnic groups - Croats, Serbs

10     and Muslims - but protected the rights of all ethnicities, regardless of

11     which province they lived in.

12             Seeing an opening in which to advance their territorial aims,

13     Prlic, Stojic, Praljak, and Petkovic quickly seized on the plan, using it

14     as a pretext to ethnically cleanse Muslims from areas attributed to

15     Croats under the Vance-Owen Plan.

16             On 15 January 1993, Prlic, as President of the Government of

17     Herceg-Bosna, issued an ultimatum to BiH armed forces, demanding that

18     they subordinate themselves to the HVO in areas attributed to the Croats.

19     His ultimatum moved down the chain of command, through Stojic, head of

20     the Defence Department of the government; Milivoje Petkovic, who at the

21     time was chief of the HVO Main Staff.  He, in turn, dispatched it down to

22     the HVO's operative zones.

23             At that time Praljak was an Assistant Minister of Defence of the

24     Republic of Croatia.  He was a Major-General in the Croatian army at the

25     time.  Acting as a conduit between Croatia and Herceg-Bosna, Praljak was

Page 182

 1     actively involved in drafting and implementing the Prlic ultimatum.

 2     Your Honours heard a reference to that already in this morning's

 3     proceedings.  I'm referring to volume 4, paragraphs 553, 556, 482.

 4             Your Honours have heard this morning references and claims that,

 5     in fact, the involvement in the peace process was something that the

 6     Croats engaged in as a way of promoting peace.  In fact, Herbert Okun,

 7     who was the co-chairman on the International Conference on the former

 8     Yugoslavia, he was highly involved in the creation, the proposal of the

 9     Vance-Owen Peace Plan, he testified at the trial and he testified that

10     the HVO's interpretation of the Vance-Owen Plan, as evidenced by this

11     ultimatum was "illegal and contrary to the agreement."  Transcript page

12     16773.  See also his evidence at 16775.

13             Rather than embracing the peace process to advance peace, these

14     appellants, in fact, seized on the peace process to advance their

15     territorial aims.

16             When the Army of Bosnia-Herzegovina refused to heed the ultimatum

17     and subordinate themselves to the HVO, the HVO attacked, and in the days

18     that followed, HVO armed forces committed many crimes against Muslim

19     civilians and property, torching Muslim homes and expelling the Muslim

20     population throughout much of Gornji Vakuf municipality.

21             Valentin Coric was the Chief of the HVO Military Police

22     Administration.  He engaged military police units in eviction operations

23     in Gornji Vakuf.  That's volume 4, paragraph 1.000.

24             The next crimes followed the same pattern.  On 3 April 1993,

25     Prlic and his HVO government issued another ultimatum, again citing the

Page 183

 1     Vance-Owen Peace Plan, demanding subordination to the HVO by the 15th of

 2     April, 1993.  That deadline passed and the HVO attacked Sovici and

 3     Doljani, the villages in the Jablanica municipality.  On 17 April 1993,

 4     Muslims were subsequently arrested, detained and then evicted from the

 5     villages.

 6             There's been a reference to the -- Prlic, as today, claimed that

 7     his government had no involvement in issuing ultimatums or that their

 8     intentions were benign.  In fact, the Chamber's finding linking their

 9     government meeting on the 3rd of April, 1993, to the issuance of this

10     ultimatum that then led to the operations in Sovici and Doljani in April

11     is dealt with by the Chamber in volume 4, paragraphs 138, 140, 142.

12             And so on the 17th of April, in co-ordinated attacks on that same

13     day, the HVO forces attacked Muslims also in villages in Prozor

14     municipality the same day they were attacking in Sovici-Doljani.

15             Berislav Pusic was alongside Petkovic on the ground in Sovici and

16     Doljani in early May of 1993, after the villages had been captured by the

17     HVO.  He saw the mosques and the Muslim homes which the HVO destroyed

18     after taking the villages.  He saw the very harsh conditions in which the

19     Muslim population there was being held.  With Petkovic, he facilitated

20     the removal on the 5th of May of the Muslim population, including some

21     450 women, children, and elderly, out of Sovici-Doljani into territory

22     then controlled by the ABiH.  That's volume 4, paragraph 1103.

23             Pusic's JCE role in regard to prisoners increased as the JCE

24     advanced.  There was reference today by Mr. Prlic claiming that the

25     policy was that everyone can stay in their homes.  That's not what the

Page 184

 1     evidence shows and that's certainly not what the Trial Chamber found.

 2             On the same day that Petkovic and Pusic were in Sovici-Doljani

 3     working to evict and to remove the Muslim population from those villages,

 4     Prlic and Boban were meeting, also on the 5th of May, with a

 5     representative of an international humanitarian organisation in Mostar.

 6     They asked this organisation to assist them in arranging a big population

 7     exchange:  Croats from up in Central Bosnia coming into Mostar in

 8     exchange for Muslims in Mostar being removed out into Central Bosnia.

 9     This organisation refused to get involved in what it called the "creation

10     of ethnically homogeneous zones," and this was something that Mr. Prlic

11     was directly involved in on the 5th of May, 1993.  I refer Your Honours

12     to volume 4, paragraph 54, on that.

13             After the successful campaigns in Gornji Vakuf, Prozor, and

14     Jablanica, the Herceg-Bosna leadership and the HVO began its assault on

15     the Muslims in Mostar on the 9th of May, 1993.  The summer and fall of

16     1993 witnessed waves of violent evictions as thousands of Muslims were

17     expelled from their homes, then detained or forced to cross the

18     Neretva River into East Mostar.

19             Valentin Coric 's own military police units participated in the

20     eviction operations and he turned a blind eye to it; volume 4, paragraph

21     1.000.  As did Jadranko Prlic; volume 4, paragraph 121, 171.  Stojic was

22     actively involved in organising and conducting the eviction operations.

23     Volume 4, paragraph 355.

24             Pusic also took part in what the Trial Chamber called this

25     "system encouraging the permanent removal of Muslims from West Mostar to

Page 185

 1     East Mostar."  Volume 4, paragraph 1116.

 2             Your Honours, the population of East Mostar nearly tripled from

 3     20.000 in May of 1993 to some 55.000 by late August of 1993 as the

 4     expulsion campaign continued.  That's volume 2, paragraph 1200.  New

 5     measures and crimes would be needed to deal with a large Muslim

 6     population dug in on the east side of what was supposed to be the capital

 7     of Herceg-Bosna.

 8             In June of 1993, therefore, the JCE expanded, as the Trial

 9     Chamber found, to include crimes of terror, unlawful attack, and

10     religious destruction linked to the siege, shelling and sniping directed

11     against East Mostar.  Volume 4, paragraph 59.  After driving the Muslims

12     into East Mostar, each of these appellants contributed to making life

13     there a living hell for them.  This siege lasted some ten months, until

14     April of 1994.

15             On 30 June 1993, in response to an attack of the Army of

16     Bosnia-Herzegovina, Petkovic ordered the arrest of Muslim males across

17     much of Herceg-Bosna, regardless of their status as civilian or soldier.

18     Thousands of Muslim prisoners found themselves in what the Trial Chamber

19     referred to as a network of HVO prisons, camps and detention facilities.

20     See volume 4, paragraph 980.  Coric was one of the architects of this one

21     unified network of HVO prisons.  Volume 4, paragraph 982.

22             The network of HVO prisons and camps was then used to serve the

23     goal of removing the Muslims from Herceg-Bosna.  The conditions at the

24     prisons and camps, large and small, were violent and appalling.  In camps

25     like the Heliodrom, Ljubuski, prisoners were deployed by the hundreds in

Page 186

 1     what the Trial Chamber called a "nearly systematic" HVO programme of

 2     using prisoners for forced labour and as human shields.  They were forced

 3     to dig trenches, carry sandbags into active confrontation lines, all the

 4     while being shot at, wounded and killed.  It was no better in the smaller

 5     detention facilities.  An HVO military police report from Prozor dated 18

 6     August 1993 described the horrific conditions for Muslim women detained

 7     in the villages of Podgradje, Lapsunj, Duge and Prozor.

 8             The report read:  "Every day women and girls are taken out from

 9     the collection centres ... which are not secure, and taken to houses

10     where they are raped, abused and humiliated.  For example, naked women

11     have to serve them, they are beaten until they agree to have sex, and

12     some have their hair shaven off."

13             That's Exhibit P4177, cited at volume 2, paragraph 235, a report

14     of Coric's own military police in Prozor.

15             But the Muslim prisoners did have a means of gaining release from

16     the HVO network of prisons.  As the Trial Chamber found in volume 4,

17     paragraph 64, the HVO used its detention facilities as the basis of a

18     "system of deportation" whereby Muslim prisoners could gain their release

19     contingent on their agreement to leave Herceg-Bosna altogether, often

20     with their families.  The HVO's release in exchange for deportation

21     programme was administered by Coric's miliary police and proved highly

22     effective in reducing Herceg-Bosna's Muslim population.

23             According to reports of the attaché of the BiH embassy in Zagreb,

24     on 28 and 29 August 1993 alone, nearly 700 Muslim refugees from Ljubuski

25     arrived in Zagreb.  They had been released from HVO detention centres on

Page 187

 1     the condition that they leave BiH territory within 24 hours.  Volume 2,

 2     paragraph 1875.

 3             By imprisoning all the Muslim men across these five

 4     municipalities, the HVO could more easily expel those left behind, the

 5     more vulnerable ones, and that's what happened next.

 6             The Trial Chamber considered the organised HVO expulsions of

 7     Muslim populations from Stolac, Capljina and Ljubuski municipalities.

 8     This is in volume 2, beginning at page 515.  The HVO's own statistics

 9     showed that the Muslim population in these municipalities dropped

10     dramatically as a result.

11             The Chamber noted, for example, that in Stolac, which had been a

12     Muslim-majority municipality before the conflict, the Muslim population

13     went from 8.093 to zero.  That's volume 4, paragraph 57.

14             The crimes did not abate.  On 23 October 1993, we saw the

15     notorious HVO massacre of civilians in the village of Stupni Do, in Vares

16     municipality.  That's volume 4, paragraph 61.  The HVO's highest ranking

17     military commanders, Praljak and Petkovic, attempted to cover up the

18     crime.  Volume 4, paragraph 623, 775.

19             This pattern of crime cannot be justified as having occurred

20     during combat operations or some form of self-defence, as some of these

21     appellants have argued.  In Gornji Vakuf and Sovici-Doljani, homes were

22     torched, Muslims removed, after the HVO had taken control.  Those

23     expelled from their flats in west Mostar and the municipalities of

24     Stolac, Capljina, and Ljubuski, they were not fleeing combat.  There was

25     no combat, no ABiH presence.  There was only the HVO.

Page 188

 1             These crimes were committed in service of what the Trial Chamber

 2     recalled the ultimate purpose.  And when one understands the ultimate

 3     purpose, one understands, as the Trial Chamber did, that the ethnic

 4     cleansing was not a byproduct of the armed conflict.  It was an intended

 5     consequence of the plan to change the ethnic composition of Herceg-Bosna.

 6     The Trial Chamber's discussion and findings on ultimate purpose are set

 7     out in paragraphs 6 to 23 of volume 4.

 8             Here, the Trial Chamber found that the ultimate purpose was to

 9     set up a Croatian entity that reconstituted, at least in part, the

10     borders of the Banovina of 1939 and facilitated reunification of the

11     Croatian people.  This entity was either supposed to be joined to Croatia

12     directly, subsequent to possible dissolution of BiH, or otherwise to be

13     an independent state within BiH with close ties to Croatia.

14             So, Your Honours, just a few words here on what the Banovina was

15     and why it matters.

16             The territory of the Croatian Banovina was established by an

17     agreement in Yugoslavia in 1939.  Importantly, its territory encompassed

18     not just Croatia but large parts of Bosnia-Herzegovina.  Here we're going

19     to see two maps.

20             And on the left, Your Honours, the map shows a part of Banovina

21     territory in 1939 that fell within the territory of Bosnia-Herzegovina.

22     It's shaded the olive colour.  The Banovina lasted just two years before being

23     swept away by World War II.  The map on the right shows the 30

24     municipalities in BiH that were declared to comprise Herceg-Bosna in

25     November of 1991.

Page 189

 1             Your honours will note the similarity as between the two.  There

 2     is no coincidence here.  50 years after it vanished, the Banovina

 3     territory in BiH was to be restored as Herceg-Bosna.

 4             The leading proponent of restoring the Banovina territory on the

 5     territory of BiH was then-Croatian President Franjo Tudjman.  The Trial

 6     Chamber reasonably found that Tudjman advocated dividing BiH between

 7     Croatia and Serbia and that he was "preoccupied" with Croatia's borders

 8     and the Banovina.  Findings at volume 4, paragraphs 10 and 22.

 9             US Ambassador Galbraith, who met frequently with Tudjman during

10     1993, testified that Tudjman believed "that a substantial part of Bosnian

11     territory should become territory of the Republic of Croatia."  As

12     Galbraith said, Tudjman "referred specifically and very often to the 1939

13     agreement that established the Banovina of Croatia that included parts of

14     the territory of Bosnia-Herzegovina."

15             His evidence is at transcript page 6428.

16             The Trial Chamber also relied on numerous statements of

17     President Tudjman himself on this in what we call the presidential

18     transcripts.  Your Honours will be hearing about this throughout the

19     course of this week's proceedings.  They're transcripts of recorded

20     meetings that were held in President Tudjman's offices.  Scores of these

21     are in evidence, and they memorialise important conversations among many

22     key players.  As he said in a meeting with Bosnian Croat leaders in

23     December 1991:

24             "It's time we take the opportunity to gather the Croatian people

25     inside the widest possible borders," cited at volume 1, paragraph 428.

Page 190

 1             Later on the 17th of September, 1992, Tudjman declared that the

 2     preservation of Croatian statehood also implies the Croatian Banovina.

 3     That's Exhibit P498.

 4             Tudjman's many references to the Banovina and Croatia's borders

 5     were considered by the Trial Chamber.  We refer Your Honours to volume 4,

 6     paragraphs 18 and 22.

 7             And so this short-lived Banovina was to serve as the vehicle for

 8     facilitating the reunification of the Croatian people in Croatia with

 9     those in Bosnia and Herzegovina.  That's the ultimate purpose, and the

10     Trial Chamber's finding on this is fully supported by the evidence.

11             And so what transformed this ultimate purpose into a joint

12     criminal enterprise involving crime on such a tremendous scale?  It was

13     the recognition that achieving the ultimate purpose required changing the

14     ethnic makeup of the territories claimed as Herceg-Bosna.  It's in volume

15     4, paragraph 43 that the Trial Chamber makes this very connection.  And

16     it's correct to have done so.

17             Here's another map, Your Honours.  It shows most of the

18     Herceg-Bosna territory focused on the crime base municipalities.  The

19     municipalities shaded blue were Croat majorities before the war based on

20     the 1991 census.  Croats did not have a majority in the areas shaded

21     yellow.  As Your Honours will note, very substantial amounts of

22     Herceg-Bosna territory in which Croatian people were supposed to be

23     reunified were, in fact, areas in which ethnic Croats were not a

24     majority.

25             The way to ensure that Herceg-Bosna became what it was created to

Page 191

 1     be, an entity for Croats, was to reduce the non-Croat population and to

 2     increase the Croat population.  The leadership of Croatia and

 3     Herceg-Bosna knew this well, even before the common criminal purpose was

 4     implemented.

 5             I'm going to conclude, Your Honours, by one reference to the

 6     evidence that sums up how these -- the joint criminal enterprise actually

 7     then succeeded in achieving this goal of changing ethnic composition in

 8     Herceg-Bosna.  I'm going to go to my very last slide, skipping ahead for

 9     time.

10             I want to refer Your Honours to my earlier statement that

11     reference the Chamber's finding on Stolac, which had been a Muslim

12     majority municipality before the war.  The finding was that the Muslim

13     population in Stolac went from 8.093 to 0.  In volume 2, paragraph 2034,

14     the Trial Chamber recalled the words of Andjelko Markovic, who was the

15     president of the HVO in Stolac.  In a meeting with President Tudjman in

16     Zagreb on the 21st September, 1993, latter stages of the JCE, Markovic

17     informed President Tudjman:  "Today, there is not a single Muslim in

18     Stolac.  We have populated Stolac with our refugees from Bosnia."  That's

19     Exhibit P5237.

20             Your Honours, the Trial Chamber reasonably found, and you'll hear

21     throughout our submissions this week evidence and references to the

22     judgement and the evidence that support this, the ethnic cleansing of the

23     Muslim population, whether it's in Stolac or whether any of the other

24     municipalities, all these crimes and the pattern they share shows that

25     the crimes were about changing the ethnic balance to ensure Croats could

Page 192

 1     fully control and dominate the territory of their Croatian community,

 2     their Croatian republic.  And the crimes, the joint criminal enterprise,

 3     as found by the Trial Chamber, corresponded to that goal.

 4             And with that, Your Honours, I will turn the floor over to my

 5     colleague, Ms. Gustafson.

 6             MS. GUSTAFSON:  Good afternoon, Your Honours.

 7             JUDGE AGIUS:  Good afternoons.

 8             MS. GUSTAFSON:  Your Honours, as president of the Herceg-Bosna

 9     government, Prlic wielded significant power and authority and he used

10     that power to further the common criminal purpose rather than curb it.

11             As Mr. Stringer already mentioned, it was the government's

12     15 January, 1993, ultimatum, signed into effect by Prlic, that initiated

13     the implementation of the JCE.  The ultimatum was implemented down the

14     military chain of command and led to co-ordinated criminal attacks on

15     Muslims in Gornji Vakuf.

16             It was Prlic who then led the government session in April where a

17     second --

18             THE INTERPRETER:  Kindly slow down, please.  Thank you very much.

19             MS. GUSTAFSON:  -- where a second ultimatum was issued triggering

20     criminal attacks on Muslims in Jablanica and Prozor, attacks that

21     followed the same pattern as in Gornji Vakuf.

22             And Prlic was not just a key player in setting the common

23     criminal purpose in motion.  He was a key player in ensuring its

24     continuation and the continued flow of Muslims out of Herceg-Bosna.  He

25     endorsed the mass arrest of Muslim men beginning in July 1993.  He

Page 193

 1     supported the campaign of firing and shelling against the Muslim

 2     population of east Mostar while blocking vital humanitarian aid.

 3             He also played an important role in what the Chamber termed in

 4     volume 4, paragraph 64, a system of deportation by which HVO authorities

 5     detained Muslims en masse in terrible conditions and conditioned their

 6     release on their agreement to leave for third countries with their

 7     families.  Prlic justified the detentions and failed to take adequate

 8     steps to have detainees released or to improve their detention

 9     conditions.  And Prlic met repeated international protests of crimes with

10     lies, with false assurances that he would take steps, which he did not

11     take, or false denials.

12             The Chamber relied on countless pieces of evidence in reaching

13     its conclusions on Prlic's responsibility.  Evidence including minutes of

14     government sessions, government documents, HVO military documents, and

15     reports from international organisations.  And it heard testimony from

16     dozen of witnesses, many of whom were impartial international

17     humanitarian workers who watched the HVO pattern of criminality unfold,

18     protested to Prlic, and received his lies and deflections in response.

19             And what is Prlic's response the Chamber's detailed findings and

20     the voluminous evidence underpinning them?  Well, you heard this morning,

21     Your Honours, the crux of his appeal is that the Trial Judgement is a

22     conspiratorial plot, an act of judicial subterfuge designed to convict

23     him under the guise of a reasoned opinion.  Then working from this

24     premise of a manipulated judgement, Prlic spends most of his appeal

25     rearguing his case, rarely providing any kind of an explanation as to how

Page 194

 1     no reasonable Trial Chamber could have reached the challenged findings

 2     and rarely asserting any kind of legal error.

 3             So this conspiracy theory, absurd as it is, is central to Prlic's

 4     appeal, because without it he rarely even tries to make a showing of an

 5     error warranting appellate intervention.

 6             As we've argued in Ground 2 of our response brief, Your Honours,

 7     there is no indication that the Trial Chamber disregarded Prlic's

 8     witnesses, let alone an indication of a judicial conspiracy.  And we

 9     pointed out that these claims are propped up on dozens of instances in

10     which Prlic claims the Chamber ignored important evidence from his

11     witnesses but which cite to evidence that was either expressly discussed

12     by the Chamber, is consistent with its findings, or is just irrelevant.

13     And I refer you to our response brief at paragraphs 50 and 53.

14             I would like to address one further argument that was made this

15     morning and also comes up in Prlic's reply brief under Ground 2 at

16     paragraphs 41 to 44, and this the claim that the Chamber provided

17     insufficient reasoning when making adverse credibility findings for three

18     of his witnesses.

19             Prlic does not cite any legal authority for these claims, but

20     there is legal authority on this issue and that authority demonstrates

21     that the Chamber was entitled to make conclusory findings on these

22     witnesses' credibility.  I refer you to the Popovic appeals judgement at

23     paragraph 133.  Prlic shows no error here.  Ground 2 of Prlic's appeal

24     should it be dismissed.

25             I will now move on, Your Honours, to discuss aspects of Prlic's

Page 195

 1     power and authority and his use of those powers to contribute to the

 2     common criminal purpose.

 3             And in discussing Prlic's JCE contributions, I will respond to

 4     questions 3 and 4 raised in your appeal preparation order.

 5             Turning to Prlic's powers.

 6             The Chamber's findings on Prlic's power and authority as

 7     president of the Herceg-Bosna government are based, in large measure, on

 8     his formal statutory powers and evidence demonstrating him actually

 9     exercising those powers.

10             Prlic argues, and you've heard it this morning, as he did at

11     trial, that despite being president of the government he was virtually

12     powerless.

13             And the general theme underlying this claim, and it's the same

14     theme he tried to convince the Trial Chamber of and failed, is that

15     because he presided over a collective decision-making body, he can't be

16     held responsible for its decisions.

17             Your Honour, the Chamber expressly considered this claim at

18     volume 4, paragraph 89, and reasonably rejected it.  It found instead

19     that while the government reached decisions in a collective manner, as

20     the president of this body Prlic played a leading role in the government

21     and held and exercised authority through this collective decision-making

22     process.  That's volume 4, paragraphs 90 and 121.

23             And, Your Honours, Prlic effectively concedes the leading role he

24     had as president of the government, and that's clear from paragraph 325

25     of his appeal brief, where he asserts that his witness, Zoran Perkovic,

Page 196

 1     accurately described how the government functioned.  And he cites

 2     Perkovic explaining that at government meetings Prlic introduced each

 3     agenda item, Prlic opened the discussion, Prlic concluded the discussion

 4     by tabling a proposal, and then Prlic ordered a vote, or if Prlic

 5     considered the consensus to be clear, he would "simply say, All right,

 6     debate over.  Regulation adopted."

 7             I want to emphasise that this is evidence that Prlic himself

 8     relies on regarding his role in the government, and it's the same

 9     evidence the Chamber relied on at paragraph 536 in volume 1 in reaching

10     conclusions that track this testimony.

11             The difference is that while Prlic argues that despite this

12     obviously leading role in the government Prlic has no responsibility for

13     its decisions, the Chamber reasonably and logically concluded otherwise.

14             Today I will focus on just one area of Prlic's power and

15     authority, and this is his key role in relations with Tudjman and other

16     Croatian leaders.  That conclusion is at the volume 4, paragraphs 119 to

17     121, challenged in Ground 15 of Prlic's appeal.  And I will focus in part

18     on this area, Your Honours, because Prlic's interactions with the

19     Croatian leadership also illustrate his shared intent for the common

20     purpose and the ultimate purpose, and they show JCE members working

21     together to formulate the common purpose and set it in motion.

22             The finding that Prlic played a key role in relations with

23     Croatian leaders is based largely on transcribed meetings that Tudjman

24     held with Prlic and other Croatian and Herceg-Bosna leaders, meetings

25     that show that Prlic as part of the inner circle of Herceg-Bosna and

Page 197

 1     Croatian leaders who discussed and decided their joint goal of creating a

 2     Croat-dominated entity in BiH.

 3             In challenging this conclusion under Ground 15, Prlic complains

 4     that the Chamber only relied on five presidential transcripts.  According

 5     to Prlic, this is an insufficient number of meetings for Prlic to have a

 6     key role in relations with Croatian authorities.  That's paragraph 439 of

 7     his brief.

 8             But Prlic does not show the Chamber acted unreasonably in

 9     concluding otherwise.  And, of course, the number of contacts is not

10     determinative.  The Chamber also rightly also examined the nature of

11     these contacts.  I will take you through some of those transcripts that

12     the Chamber relied on.  The nature of the discussions in these

13     transcripts illustrate Prlic's key role in relations with the Croatian

14     leadership.  As I go through them, Your Honours, I will digress in a few

15     places to respond to some issues raised by the Defence and that relate to

16     the discussions in the transcripts.

17             In finding Prlic's key role in relations with Croatian officials,

18     the Chamber relied, for instance, on P498.  This is the transcript of a

19     17 September, 1992, meeting.  Prlic and Mate Boban were among a select

20     group of Bosnian Croat officials to attend this meeting with Tudjman,

21     Susak, and other senior Croatian leaders to discuss "the situation in

22     Bosnia and Herzegovina and Croatian views on solutions to the crisis."

23     That's page 1.

24             At this meeting Tudjman laid out his geopolitical vision for

25     Bosnia.  He made clear that securing the Banovina was necessary to

Page 198

 1     preserve Croatian statehood; that Croatia must secure its territorial

 2     position in Bosnia and Herzegovina.  To that end, the Herceg-Bosna

 3     government they had established must be maintained and that the Croatian

 4     entity that they sought to create within BiH must not contain too many

 5     Muslims or Serbs.

 6             Here are the extracts, Your Honours, where Tudjman makes these

 7     key points to Prlic and others.

 8             He emphasised that the Bosnian-Herzegovinian question is one of

 9     the central issues relating to the Croatian people in general, and "this

10     is not just an issue of the Croats in Bosnia and Herzegovina; it is an

11     issue of the Croatian state, the Croatian people in general.  Why?

12     Because this is so relevant to Croatia in terms of history and

13     geopolitics as a result of the unnatural borders of the present Croatian

14     state."  That's page 65.

15             And then Tudjman stressed the importance of the language in the

16     preamble to the Croatian constitution "that the preservation of Croatian

17     statehood implies also the Croatian Banovina."  Page 67.

18             And he instructed those present that "we have defended

19     Herzegovina with the HVO so that we can establish a Croatian government

20     there and we must keep it."  Page 69.

21             Tudjman underscored that it was "in the vital interest of the

22     Croatian people, the Croatian state, that we secure our position in the

23     national and territorial sense in Bosnia and Herzegovina."

24             This morning, Your Honours, you heard Mr. Prlic argue that

25     Herceg-Bosna was a temporary structure, and he argued that the Chamber

Page 199

 1     completely neglected this.  The Chamber did not neglect this argument; it

 2     expressly considered it at volume 4, paragraphs 7 and 15, and it

 3     reasonably rejected it in light of clear evidence, clear evidence like

 4     this very transcript where Tudjman emphasised they must keep Herceg-Bosna

 5     because it is vital to the national and territorial interests of Croatia.

 6             And then Tudjman warned those present that they could not include

 7     all Croats from Bosnia-Herzegovina in this territorial entity.  Why?

 8     Because an entity that included all areas in BiH where Croats lived would

 9     also include huge numbers of Muslims and Serbs.  He said:  "We must be

10     alert.  If they gave us a border on the Drina with 2 million Muslims and

11     1.5 million Serbs, whose state would that be?"  So he emphasised they

12     should only secure areas of Bosnia that were of "essential interest" to

13     Croatia.  That's page 75.

14             He then gave the Herceg-Bosna leadership clear instructions:

15     "In our talks, in your talks, you who are now going to Geneva, therefore,

16     the talks take the position Bosnia and Herzegovina as a community of

17     three constituent nations with the provisions we mentioned earlier

18     regarding the security and territorial sovereignty of Croatia."

19             Your Honours, I see we're at the break time.  I can conclude with

20     this transcript or I can break now, as you wish.

21             JUDGE AGIUS:  I think you can conclude with this transcript --

22             MS. GUSTAFSON:  Thank you.

23             JUDGE AGIUS:  -- I think after, and we will reconvene at 2.30.

24     Thank you.

25                           --- Luncheon recess taken at 1.00 p.m.

Page 200

 1                           --- On resuming at 2.31 p.m.

 2             JUDGE AGIUS:  So everyone is here.  Let me just check to make

 3     sure that we are not missing anyone.  Okay, let's proceed.  Thank you.

 4             MS. GUSTAFSON:  Thank you, Mr. President.  Your Honours, I'd just

 5     taken you through some extracts of the 17 September, 1992, presidential

 6     transcript.

 7             And to sum up on that transcript that the importance of this

 8     meeting, a meeting that took place just a few months before Prlic and

 9     other JCE members began implementing the common criminal purpose, is

10     apparent.  Tudjman gathered Prlic and others among the Herceg-Bosna

11     leadership together and made clear that they must secure and maintain a

12     Croat-dominated entity in BiH.

13             And here I'd like to digress for a moment to respond to an

14     argument raised this morning both by Mr. Prlic and Mr. Karnavas, that

15     Tudjman consistently supported independence for BiH.  This argument is in

16     large measure a distraction, because support for an independent BiH is

17     built into the Chamber's findings, and it does not gainsay either Prlic's

18     or Tudjman's support for the ultimate purpose or the common criminal

19     purpose.

20             At volume 4, paragraphs 12, 16, and 17, the Chamber found that

21     Tudjman spoke equivocally, publicly advocating support for an integral

22     BiH knowing the international community was opposed to partition, while

23     nevertheless seeking to create a Croatian entity that would either exist

24     within BiH with close ties to Croatia, or be directly annexed into

25     Croatia.  And this public, private divide is perfectly illustrated by the

Page 201

 1     17 September transcript, because Tudjman emphasises to Prlic and others

 2     that it is in the vital interest of the Croatian people, the Croatian

 3     state, that we secure our position in the national and territorial sense

 4     in Bosnia and Herzegovina, that's at page 74.  And then instructs those

 5     attending the upcoming talks in Geneva to "take the position Bosnia and

 6     Herzegovina as a community of three constituent nations with the

 7     provisions we mentioned earlier regarding the security and territorial

 8     sovereignty of Croatia."  That's page 76.

 9             In other words, Your Honours, they must publicly negotiate for a

10     confederal Bosnia comprised of three constituent units, but Tudjman makes

11     crystal clear at this private meeting that the Croat constituent unit

12     Herceg-Bosna is intended to secure the national and territorial interests

13     of Croatia to rectify what Tudjman referred to as the problem of

14     Croatia's unnatural borders.  This meeting shows how Tudjman and Prlic's

15     public support for an independent Bosnia with a confederal structure was

16     a step towards achieving their ultimate purpose.  And a few weeks after

17     this September 1992 meeting, we see Prlic and other JCE members working

18     to implement the private policy that Tudjman had outlined, namely,

19     securing and maintaining Croatia's territorial and nationality interests

20     by securing the Banovina.

21             In October 1992, Prlic, together with Praljak, who was then

22     Croatia's assistant defence minister, and Stojic met twice in secret with

23     General Ratko Mladic.  Petkovic also attended the second meeting.  And in

24     accordance with the objectives that Tudjman had articulated, they

25     discussed dividing Bosnia in a way that would further their goal of

Page 202

 1     securing a Croat-dominated entity within the Banovina borders making

 2     clear that the Muslims should also get a canton "so they have somewhere

 3     to move to."  That's P11376 and P11380, both relied on in volume 4,

 4     paragraph 119.

 5             This material, Your Honour, shows that Prlic is plainly part of

 6     Tudjman's inner circle.  He attends a key strategy session with Tudjman

 7     and works to implement their shared goals through secret negotiations

 8     with Mladic, and Prlic maintained this key role throughout the

 9     implementation of the common purpose.  For instance, Prlic, along

10     Praljak, Petkovic, and Boban attended the 5 November, 1993, meeting,

11     that's P6454, relied on at volume 4, paragraph 119, and discussed at

12     volume 4, paragraph 191.

13             And at this meeting, Tudjman again emphasised the importance of

14     securing a Croat entity in BiH in order to protect the long-term

15     interests of a state of Croatia.  He said:

16             "In the military sense, we should see how to protect the

17     interests of the Croatian people and the Croatian state."

18             And he reminded them that they were resolving "the destiny of the

19     Croatian state" for the centuries to come.  That's page 20.

20             After hearing Tudjman speak, Prlic explained the importance of

21     the meeting and the importance of himself.  He said:

22             "I think that this meeting is extremely important.  The

23     highest-ranking officials of the Republic of Croatia and the Croatian

24     Republic of Herceg-Bosna are here, and this is an opportunity for open

25     dialogue on the overall situation that we are in and the possibilities to

Page 203

 1     correct the situation that we are in now."  That's page 30.

 2             And this was not just talk because Prlic then spoke openly about

 3     his government strategy of moving ethnic Croats from Central Bosnia into

 4     HVO-controlled territory to further their goal of achieving a demographic

 5     transformation of Herceg-Bosna.

 6             And again I'd like to digress to respond to an issue that was

 7     raised this morning, where Mr. Prlic argued that he facilitated this

 8     movement of Croats from Central Bosnia into Herceg-Bosna for purely

 9     humanitarian reasons.  Now, I would add that this is another repeat of a

10     failed trial argument.  I refer you to volume 4, paragraphs 197 and 206.

11     Prlic's claims are belied by his own transcribed words at this meeting.

12     He said:

13             "We must move closer to rounding off territories.  As a

14     government, last spring, we defined both the proposals and the

15     conclusions, even with regard to moving certain brigades from some areas,

16     which would include moving the population from those areas and

17     concentrating it in certain directions that we think could become and

18     remain Croatian areas."  That's page 36.

19             And he added:

20             "I consider that we should now get clear support in social

21     welfare in receiving and accommodating the refugees from Vares.  We can

22     objectively in that free area, we can out of our good wishes and

23     political stands, say that all Croats should be down there."  That's

24     page 38.

25             So Prlic's own words make clear that even if there was

Page 204

 1     humanitarian aspect to this movement, it was part of a strategy to round

 2     off territories by concentrating Croats in areas they thought could

 3     become and remain Croatian.  The Chamber correctly concluded in volume 4,

 4     paragraph 55, that this movement of ethnic Croats was aimed at altering

 5     the balance of power so that it favoured the Croats.

 6             The Chamber also reasonably relied on this meeting in support of

 7     its finding that Prlic played a key role in relations with Croatian

 8     leaders.  Again, it shows Prlic strategising with Tudjman and other

 9     leaders regarding their ultimate shared goal, creating a Croat-dominated

10     territory in Herceg-Bosna.

11             A few months later, at a 13 February, 1994, meeting, P7856,

12     Tudjman gathered what he referred to as the leading people of

13     Herceg-Bosna, that's at page 1, to discuss political strategy.  When

14     Prlic spoke part way through this meeting, he said:

15             "Mr. President, the information which was presented today is

16     exceptionally important and of strategic importance, and in some of their

17     aspects fundamentally change certain positions."  That's 46.

18             And Prlic declared:

19             "We have created a state of Herceg-Bosna with all systems.

20     Absolutely no solution is acceptable without a Croatian republic of

21     Herceg-Bosna, i.e., a Croatian republic, and the borders should encompass

22     as many areas as possible in the whole of Central Bosnia.  I believe we

23     can achieve this, by military mean if necessary."  That's page 47.

24             Your Honours, this morning Mr. Prlic argued that Herceg-Bosna had

25     no state pretensions and no borders, and Mr. Karnavas argued that it was

Page 205

 1     through subterfuge that the Chamber found that Croatian and Herceg-Bosna

 2     leaders were intending to create a state within a state.  But it's right

 3     here in black and white:  Prlic, in fact, insisted on securing an

 4     autonomous Croat entity with borders and customs and all systems.

 5             Prlic's own transcribed words also contradict his claim in this

 6     appeal, that he was not a key player in relations with Tudjman and the

 7     Croatian leadership.  Prlic expressly recognised the significance of

 8     those interactions at the time.  He shows no error in the Chamber

 9     reaching the same conclusion.  Ground 15 should be dismissed.

10             Before I move on to discuss Prlic's JCE contributions, I would

11     like to briefly address an argument Prlic make under Ground 19 that

12     relates to Prlic's interactions with Tudjman and other Croatian

13     officials.

14             And Ground 19 Prlic challenges the Chamber's finding in volume 3,

15     paragraph 567, that Croatian authorities wielded overall control over HVO

16     authorities.  And this relates to the international nature of the

17     conflict.  As can you see from this transcripts, the transcripts

18     themselves illustrate this control.  They show Prlic and other

19     Herceg-Bosna officials reporting to Tudjman, and Tudjman dictating the

20     policy for Herceg-Bosna.  I'll just touch on a few further points

21     confirming the Croatian leadership's control over the Herceg-Bosna

22     leadership.

23             First of all, Your Honours, this control was no secret at the

24     time.  As Peter Galbraith testified, every diplomat "except the most

25     oblivious clearly understood that Tudjman and Susak controlled the

Page 206

 1     Bosnian Croat political entity, the HDZ in Bosnia, and the HVO," at

 2     transcript page 6470 to 6471.

 3             THE INTERPRETER:  Kindly slow down, please.  Thank you very much.

 4             MS. GUSTAFSON:  And while Prlic now challenges this control, this

 5     contradicts his own repeatedly affirmations of it.  Prlic affirmed it,

 6     for example, on the 10th of November, 1993, when he and Mate Boban went

 7     to Zagreb to seek Tudjman's approval for their proposals to appointments

 8     of Herceg-Bosna government ministers.  That's P6581, pages 26 to 29,

 9     volume 4, paragraph 93.

10             Prlic affirmed Tudjman's control in 1998 when he told Tudjman:

11     "I have been implementing what you were telling me, all the time." To

12     which Tudjman responded:   "Well, it is for sure that you were the most

13     intelligent one within that structure."  That's P8848, page 8.

14             Prlic even confirmed Tudjman's control directly to the

15     Prosecution in his suspect interview.  He told the Prosecution that if

16     Tudjman had wanted to remove Mate Boban, Herceg-Bosna's president and the

17     supreme commander of its armed force, he could have done so in one minute

18     because "the centre of political decision-making was in Zagreb."  P9078,

19     page 125.

20             And Tudjman eventually did remove Boban in early 1994.  That's

21     volume 3, paragraph 564.

22             But let me be clear, this was not because Boban had been

23     implementing a vast criminal campaign against Herceg-Bosna's Muslims.

24     It was because the international community, particularly the US

25     government, pressured Tudjman to remove Boban.  That's volume 3,

Page 207

 1     paragraph 564, citing Galbraith at transcript page 6525 to 6527.  And

 2     Tudjman himself confirmed this in March 1994 when he told Prlic and

 3     others that he had removed Boban from the political scene "but not

 4     because I would believe that Boban was guilty."  That's P8012, page 57.

 5     Prlic's presence is noted at page 3.

 6             And Tudjman was not just under pressure to remove Boban at this

 7     time.  He was also facing immense pressure and threats of sanctions,

 8     particularly from the US and UN Security Council, for the continued

 9     involvement of the Croatian army in Bosnia.  I refer you, for example, to

10     P7789 and Galbraith at transcript page 6520.

11             Faced with what Galbraith termed an ultimatum from the

12     international community in late February 1994, Tudjman was forced to

13     change course and end the war as well as his plans for a Greater Croatia.

14     That's volume 4, paragraph 23, citing Galbraith at transcript page 6519

15     to 6523, and I refer you also to page 6529.

16             Once Tudjman finally decided to change course, fighting between

17     the ABiH and the HVO immediately ceased.  And on the 1st of March, 1994,

18     the Washington Agreement was signed.  Volume 1, paragraphs 487 to 488;

19     and volume 3, paragraph 566.

20             In short, Your Honours, the Croatian leadership's overall control

21     over the Herceg-Bosna's leadership is plainly supported by Prlic's own

22     repeated affirmations of it and Tudjman's ability to remove

23     Herceg-Bosna's president and the supreme commander of its armed forces

24     and bring the entire conflict to an end when it suited his political

25     interests.  Ground 19 should be dismissed.

Page 208

 1             I will turn now to address Prlic's JCE contributions, and I will

 2     focus today on two specific areas of contribution:  His contribution

 3     to the implementation of the common purpose in Gornji Vakuf, and his

 4     contributions to detention facility crimes.  If time permits, I will also

 5     discuss his deliberate failure to prevent and punish crimes.  For the

 6     remainder of his JCE contributions, we rely on our brief.

 7             I'll begin by addressing Prlic's contributions to crimes in

 8     Gornji Vakuf, and in the course of this I will respond to questions 3 and

 9     4 concerning the attack on Dusa village in Gornji Vakuf.

10             As the Chamber found, the implementation of the JCE commenced

11     with the HVO's criminal attacks on Gornji Vakuf.  And the evidence the

12     Chamber relied on shows Prlic playing a key role at all stages, beginning

13     with his issuing 15 January, 1993, ultimatum that led to the criminal

14     attacks.

15             And again, I'll digress for a moment to respond to an argument on

16     Prlic's powers.  It was an argument raised this morning by Mr. Prlic

17     regarding his limited or to non-existent powers in military matters.  But

18     Prlic doesn't challenge the finding that the 15 January government

19     decision, signed by Prlic, was implemented down the military chain of

20     command.  And that decision, P1146, which demands that the ABiH in

21     provinces 3, 8, and 10 subordinate to the HVO within five days, states:

22             "This decision shall be implemented by the head of the Defence

23     Department."

24             That same day, Stojic, head of the Defence Department, duly

25     implemented the ultimatum with an order to the Chief of the Main Staff

Page 209

 1     Petkovic and the Chief of the Military Police Administration Coric.

 2     That's P1140.  Petkovic, in turn, implemented Stojic's order with an

 3     order down his chain of command.  P1156.

 4             The Chamber reasonably relied on these orders, not just to show

 5     Prlic's involvement in Gornji Vakuf but also in concluding that Prlic had

 6     powers in military matters, including the power to take decisions which

 7     had a direct impact on the course of HVO military operations.  Volume 4,

 8     paragraphs 106 and 111.

 9             These documents plainly support this conclusion and they fatally

10     undermine Prlic's arguments in Grounds 11.3 and 12 where he challenges

11     these findings, because these documents show Prlic as head of the

12     government directing the entire HVO military apparatus.

13             Prlic's answer to this order is to pretend it doesn't exist.  At

14     paragraph 342 of his brief, he claims neither the HVO HZ HB - that's the

15     government - nor Prlic could issue orders to the head of the Defence

16     Department, but the government ultimatum he signed states, "This decision

17     shall be implemented by the head of the Defence Department."  Other

18     examples of orders to the Defence Department are noted at paragraph 212

19     of our response brief.

20             I'll turn back now to the implementation of this ultimatum in

21     Gornji Vakuf.

22             Here, Prlic does challenge the Chamber's finding that the Gornji

23     Vakuf attack was implementing the government ultimatum - you heard those

24     arguments again this morning - and he does so by simply ignoring much of

25     the evidence the Chamber relied on clearly demonstrating that connection.

Page 210

 1             THE INTERPRETER:  Kindly slow down for the interpreters.  Thank

 2     you.

 3       MS. GUSTAFSON:  Prlic ignores, for instance, P1163, cited at volume 4,

 4     paragraph 125.  This is a 16 January ECMM report recording Colonel Andric

 5     of the HVO Main Staff transmitting Petkovic's order implementing the

 6     government ultimatum and demanding the subordination of the ABiH in

 7     Gornji Vakuf.  He ignores P1185, cited at volume 4, paragraph 125.  This

 8     is north-west OZ Commander Siljeg's 18 January report sent to the

 9     government stating that on 16 January Siljeg and Andric had informed the

10     ABiH in Gornji Vakuf that they must implement the government ultimatum by

11     the 17th, the ABiH had not done so, and the HVO had then attacked Gornji

12     Vakuf.

13             And Prlic ignores the contents of P1227.  These are minutes of

14     the government meeting on the 19th, the day after Andric attacked the

15     Gornji Vakuf area.  Here, Stojic gave a report analysing the

16     implementation of the 15 January decision in which he noted that "the

17     situation in Gornji Vakuf is calming down."

18             As the Chamber rightly noted in paragraph 127 of volume 4, "that

19     document clearly shows that the HVO itself saw a connection between the

20     ultimatum of 15 January 1993 and the fighting in Gornji Vakuf."

21             Prlic does not engage with this finding.  Instead, he just

22     incorrectly claims that these minutes show "the absence of information

23     about developments in the field."  That's paragraph 463 of his brief.

24             Prlic has not met his burden on appeal.  He ignores key pieces of

25     evidence the Chamber relied on and mischaracterises others.

Page 211

 1             Ground 16.1 should be dismissed.

 2             I'll now address question 3 which concerns the killing of seven

 3     civilians in Dusa village, Gornji Vakuf, on 18 January 1993.

 4             It is uncontested that during the HVO attack on Dusa an HVO shell

 5     penetrated the wall of Enver Sljivo's house, a house were dozens of

 6     civilians were taking shelter, and that the shelling of the house killed

 7     seven civilians; three children aged 3, 11 and 12, three women, and one

 8     elderly man.

 9             Your Honours have asked to us address the basis for the Chamber's

10     finding that the HVO forces fired on Sljivo's house intending to cause

11     serious bodily harm to the victims which they could reasonably have

12     foreseen could cause their death.

13             As we've indicated in our Stojic and Praljak response briefs,

14     while the Chamber characterised this as an indiscriminate attack, the

15     evidence the Chamber relied on shows that it would be more appropriate to

16     characterise this as a deliberate attack on civilians, because the

17     evidence shows that an HVO tank crew fired a tank shell directly at

18     Enver Sljivo's house which was full of civilians and only civilians, and

19     continued firing as survivors tried to flee.  This was a deliberate

20     attack on civilians and the perpetrators had the mens rea for murder.  So

21     the Chamber's conclusions on mens rea are correct.

22             The deliberate nature of this attack is made clear from the

23     evidence of the three primary witnesses the Chamber relied on and found

24     credible for this attack, Witnesses BY, BW, and Kemal Sljivo.  That's

25     volume 2, paragraph 344.

Page 212

 1             I'm going to go through some of the underlying evidence.  Some of

 2     this underlying evidence is confidential.  I intend to discuss it in open

 3     session in a manner that does not tend to reveal the identity of any

 4     protected witness.

 5             On the morning of 18 January 1993, the HVO attacked Dusa village.

 6     They began the attack by shelling the village.  That's volume 2,

 7     paragraph 358.  There was a small group of about 20 local village

 8     defenders attempting to defend Dusa.  They were located in the woods near

 9     the village and had roughly 15 rifles between them.  That's Kemal Sljivo,

10     at P10108, page 3; and BW, at 8770 to 8771.

11             I will now show you a photo that should not be shown to the

12     public.  This photo, which is Exhibit IC00059, depicts the location of

13     Enver Sljivo's house with a number 1.  The house is no longer there;

14     that's the bare patch on the ground.  This is the house where the

15     civilians took shelter.  And the location of the village defenders in the

16     trees is marked with a 2.  And the transcript reference is 8773.

17             The HVO began shelling the village in the morning with mortar and

18     artillery fire.  The shelling was aimed both at the defenders and at the

19     village.  That's transcript page 8774.

20             After a few hours, at about 12.00 midday, an HVO tank fired on

21     Enver Sljivo's house, killing seven civilians who were taking shelter

22     there.  Two witnesses confirmed that a tank fired at the house:  Kamel

23     Sljivo, P10108, page 3; and BW, at transcript page 8776.

24             This is further confirmed by Andrew Williams, another witness the

25     Chamber relied on for this attack.  He inspected the hole in the house

Page 213

 1     after the attack and assessed that this damage was caused either by a

 2     tank or an anti-tank gun.  Transcript page 8541.

 3             And why is this important?  Because it means that the HVO fired

 4     directly at the house.  Williams explained that a tank is a direct-fire

 5     weapon, meaning that the tank crew fires the shells directly at the

 6     target with the aid of a site.  Transcript page 8541.

 7             Philip Watkins, a former artillery officer, gave a similar

 8     explanation, as he said "a tank is a precise shelling that is fired and

 9     in a direct mode."  He added that the target of tank fire "is observed by

10     those firing the weapon."  And he explained that tanks shells are

11     designed to penetrate the targeted object.

12             He contrasted tank fire with indirect-fire systems, such as

13     artillery and mortars.  Artillery and mortars are not fired directly at

14     the target but are rather fired indirectly by lobbing shells into a

15     general area and are therefore less precise weapon systems.  That's

16     transcript page 18861.

17             So the use of a tank for this attack indicates that the house was

18     the HVO's target and they fired on it with a shell designed to penetrate

19     the house.  And indeed, Your Honours, there was a line of sight from the

20     tank to Enver Sljivo's house.

21             The next photo, which again should not be shown to the public,

22     indicates this.  This is Exhibit IC00058.  It shows the location of

23     Enver Sljivo's house in the immediate foreground, it's the bare patch of

24     grass that we saw on the -- bare patch on the ground we saw earlier, and

25     the location of the tank in the background is marked with a red X.

Page 214

 1     That's transcript page 8778.  So this confirms the line of sight from the

 2     tank to the house.

 3             When the tank fired on the house, it was full of civilians and

 4     only civilians.  There were no soldiers, weapons or village defenders in

 5     the house and no shots were fired from the house.  That's BW, transcript

 6     page 8775 to 8780; and BY, at page 9073.

 7             So the perpetrators would have seen no sign of any military

 8     activity coming from the house that morning.  They would also have known

 9     that people were inside because there was smoke rising from the chimney

10     and it was the only house in the village with smoke rising from the

11     chimney.  Transcript page 8779 to 8780.

12             And while the Chamber only referred to the single shell that

13     penetrated the house in its findings, evidence from two eyewitnesses the

14     Chamber relied on makes clear that the tank fired at least two shells at

15     the house.  BY, at page 9075; and Kemal Sljivo, P10108, page 3.  And the

16     shell or shells that were fired after the first hit were fired as women

17     and children were attempting to flee, killing some of the victims as they

18     tried to run away.  That's transcript page 9073 to 9075.

19             So the evidence of the witnesses to the Dusa killings that the

20     Chamber relied on to reach its findings demonstrates that the HVO tank

21     crew saw the house, knew there were people in it, fired directly at it

22     with a precise direct-fire weapon, and continued firing as civilians

23     fled.  These civilians were deliberately targeted by the HVO.

24             I would add that this attack does not stand alone.  It fits

25     squarely within the broader context of an HVO attack directed against

Page 215

 1     civilians across four Gornji Vakuf villages that same day.  The Chamber

 2     found that the HVO attacks on Dusa, Hrasnica, Uzricje and Zdrimci were

 3     carried out in exactly the same manner.  The HVO first shelled the

 4     villages, destroying some houses.  Once inside the village, the HVO

 5     arrested the whole population, separated the men, detained all the

 6     Muslims, and destroyed their homes.  The HVO then removed the majority of

 7     the detained civilians.

 8             The Chamber reasonably concluded from the absolute similarity of

 9     these criminal attacks that they were part of a preconceived plan.

10     That's volume 4, paragraph 704, and also paragraphs 45 and 48.

11             And that absolute similarity is underscored when you compare

12     events in Dusa with events in Hrasnica that same day.  When Hrasnica came

13     under attack, a group of 50 civilians similarly gathered in a single

14     house.  The HVO proceeded to fire on them from approximately 300 metres

15     away, even though they "could easily see the civilians gathering and

16     taking shelter in the basement of that house."

17             Once the HVO had rounded up the civilians from Hrasnica, they

18     sent a message to the village defenders that "the civilian population

19     would be killed if we did not surrender and give up our arms."  That's

20     Senad Zahirovic, P10106, pages 3 to 4; and volume 2, paragraph 372.

21             So the victims in Enver Sljivo's house in Dusa were not an

22     anomaly.  They were among a much larger group of victims of a

23     coordinated, violent ethnic-cleansing attack directed against the

24     civilian population of four villages.

25             The Defence teams propose two alternative theories for this

Page 216

 1     attack, neither of which is reasonable on the evidence.

 2             The first theory is that the HVO was targeting Muslim defence

 3     lines in the village and accidentally hit the house.  This claim of an

 4     IHL-compliant operation in Dusa involving accidental collateral damage is

 5     belied by the fact that the broader HVO attack was directed against the

 6     civilian population across four villages.

 7             When assessed overall, the Gornji Vakuf attack was conducted with

 8     no regard for the principle of distinction, and when you look at it in

 9     that broader context and the Chamber's conclusion that the Dusa killing

10     victims were the victims of an indiscriminate attack is correct, because

11     overall this was with an indiscriminate attack directed against village

12     defenders and civilians alike.

13             But in any event, this collateral damage theory cannot be squared

14     with the position of the defenders that day.  They were not in the line

15     of fire of the house, and the shells were fired from a precise, direct

16     fire weapon.

17             If we go back to the previous photo, again not to be shown to the

18     public, this shows the location of the tank.  So if you're standing

19     facing at the location of Enver Sljivo's house facing the tank, the

20     defenders, Your Honours, would be somewhere off to the left.  And that's

21     clear if we then go to the previous photo showing the same location from

22     a different angle, and you can see that the village defenders are not in

23     the line of fire of the house -- or sorry, the other way around, the

24     house is not in line of fire of the defenders.

25             Moreover, the defenders were spread out in a line some 50 to

Page 217

 1     60 metres apart from one another.  Their distance from the house varied

 2     from roughly 30 metres away to 100 or 200 metres away.  That's transcript

 3     page 9077, 9127 to 9129.  And they were hiding behind trees.  P10108,

 4     page 3.  So there was no group of defenders that might be visible and

 5     logical target for a tank shell. And this Defence theory is impossible to

 6     square with the fact that the HVO fired at least two consecutive shells

 7     at the house, including on fleeing civilians.  If the strike on the house

 8     was accidental, they would not have continued firing.

 9             The second Defence theory, inconsistent with the first theory, is

10     that the attack on Enver Sljivo's house was justified because

11     Enver Sljivo commanded the village defenders.  But of course, that fact

12     alone does not make his house a lawful target.  And the Defence does not

13     even allege that Enver Sljivo was in his house at the time or that the

14     HVO had any information indicating that he was.

15             In fact, the information the HVO had at the time indicates the

16     contrary.  A 16 January HVO intelligence report states that the Dusa

17     defenders are located in a dugout in the village.  3D00527.  And the

18     attack on Dusa had been ongoing for several hours before the tank fired

19     at the house, and during that time as I said no shots were fired from the

20     house.  In contrast, the village defenders had been firing back at the

21     HVO.  That's P10108, page 3.

22             So this Defence theory, taken at its highest, implies that the

23     HVO was firing highly destructive tank shells at what was obviously an

24     inhabited civilian house with no observable military activity because of

25     a speculative possibility that the owner of the house who commanded the

Page 218

 1     local defenders might be there, contrary to HVO intelligence, and then

 2     kept firing as civilians fled.  Here I would refer Your Honours to the

 3     Appeals Chamber's holding in Galic that:

 4             "Attacking anything that moves in a residential building, before

 5     determining whether the mover is a civilian or a combatant, is a

 6     paradigmatic example of not differentiating between targets."  That's

 7     footnote 706 of the Galic Appeals Judgement, and footnote 689 of the

 8     Strugar Appeals Judgement.

 9             That reasoning applies equally to this scenario and shows that

10     this Defence theory, even taken at face value, discloses an

11     indiscriminate attack with a highly destructive weapon.  At best, it

12     would be a grossly disproportionate attack given the near certainty of

13     civilian death or injury versus the speculative chance of a military

14     advantage.  Either way, this would satisfy mens rea for murder on the

15     part of the perpetrators.

16             But in any event, the evidence does not support the contention

17     that the HVO was trying to target Enver Sljivo with this tank.  The

18     absence of any military activity coming from the house and the continued

19     fire on fleeing civilians contradict this theory.  So does the broader

20     attack against the four villages, a plainly unlawful ethnic cleansing

21     operation.

22             For these reasons, Your Honours should uphold the Chamber's

23     conclusion that these seven civilians were murdered by HVO forces in

24     Dusa.

25             Unless you have any questions on question 3, I'll move on to

Page 219

 1     question 4.

 2             In questions 4 (a) and (b), you've asked that if the Appeals

 3     Chamber were to overturn the finding that the Dusa killings constituted

 4     the crime of murder and wilful killing, what is the implication for the

 5     scope of the common criminal purpose and the mens rea for murder on the

 6     part of the appellants under the first category of JCE.

 7             In that scenario, Your Honours, the scope of the common criminal

 8     purpose and the JCE1 mens rea of the appellants for murder would not be

 9     affected.  The Chamber included murders during military attacks within

10     the scope of the common purpose because it found that these attack

11     murders were part of the entire system for deporting the Muslim

12     population.  Volume 4, paragraph 66.

13             And this finding was based in large measure on the Chamber's

14     overall assessment of the pattern of crimes throughout the existence of

15     the JCE, volume 4, paragraphs 65 to 66 and 70.  And that pattern of

16     crimes falling within the scope of the common purpose is a pattern of

17     extreme violence.  It includes murder.  Not just murder during military

18     attacks in Dusa but also murders arising from the nearly systematic use

19     of prisoners for front line labour and as human shields.  It includes

20     cruel and inhumane treatment of prisoners through beatings, appalling

21     conditions, and dangerous front line work.  And it includes the

22     mistreatment of Muslims during violent eviction operations, volume 4,

23     paragraph 66.  Countless victims were subjected to this pattern of

24     violence, which continued for month after month after month.

25             Overturning just one murder incident would have no discernible

Page 220

 1     effect on this overwhelming pattern of violence, and therefore would not

 2     impact the Chamber's conclusion on the scope of the common purpose or the

 3     JCE members' mens rea.  Even if you look just at the pattern of murders

 4     during military attacks, it is clear that overturning the Dusa murder

 5     would have no discernible effect on this pattern.

 6             As a starting point, regards of how the Dusa killing

 7     characterised, the overall conduct of the Gornji Vakuf attacks in

 8     January shows the HVO employing extreme levels of criminal violence

 9     during military attacks.  The nature of those attacks indicates that

10     murder during military attacks was an accepted means of achieving the

11     ethnic cleansing objective from the get-go.

12             As I've already mentioned, the same day as the Dusa attack, the

13     HVO also attacked Hrasnica village and deliberately fired on a group of

14     50 civilians gathered in a house.  After rounding them up, the HVO

15     threatened the civilians with death.  And after the Hrasnica defenders

16     surrendered, an HVO soldier opened fire on two of them killing one and

17     wounding the other.  That's Senad Zahirovic, P10106, page 4; and P9724,

18     page 4.

19             The Chamber made no findings on this murder, presumably because

20     the victim was not listed in the annex to the indictment, but it found

21     that the evidence of the two witnesses was credible.  Volume 2,

22     paragraph 344.

23             We see the same pattern of criminal violence repeated in the next

24     round of HVO military attacks in Prozor and Jablanica in April.  These

25     attacks followed the same violent pattern as in Gornji Vakuf and included

Page 221

 1     the murder of two elderly men in Toscanica village, volume 2,

 2     paragraphs 89 to 91; volume 3, paragraph 656.

 3             By June as the shelling and sniping campaign against the

 4     population of east Mostar got under way, murder during military attacks

 5     became an even more routine part of the common criminal purpose.  For

 6     nine months the HVO subjected the Muslim population of east Mostar to a

 7     "sustained military attack, including intense, continuous weapons fire

 8     and shelling, including rounds of sniper fire over a small, densely

 9     inhabited release residential area, with the consequence that many east

10     Mostar inhabitants were injured or killed."  Volume 4, paragraph 59.

11             And in terms of shared intent, the Chamber made specific findings

12     that every one of the six appellants, based on their knowledge and

13     involvement, intended, accepted, or encouraged the attack murders in east

14     Mostar.  I refer you to volume 4, paragraphs 176, 363, 586, 750, 938, and

15     1122.  These findings, which would stand independently of the Dusa

16     killing, reinforce the appellants' shared intent for attack murders.  And

17     these findings, along with the prolonged intense fire on civilians in

18     east Mostar, also underscore the use of attack murders as an intended

19     means of furthering the common purpose.

20             While the attack murders in Mostar were ongoing in August 1993,

21     during an attack on Rastani village, the HVO executed four Muslim men.

22     Volume 2, paragraphs 948 to 963; and volume 3, paragraph 720.

23             On the 28th of October, the HVO attacked Stupni Do and murdered

24     28 villagers by shooting them, slitting their throats, or burning them in

25     their homes.  The cover-up of this massacre, involving JCE members

Page 222

 1     Petkovic, Praljak, and Boban underscores that attack murders were an

 2     accepted means of achieving the common purpose.

 3             And as I signalled earlier alongside this pattern of attack

 4     murders, HVO forces were routinely murdering prisoners by using them for

 5     front line labour and as human shields.  The Chamber analysed this type

 6     of murder independently from attack murders and concluded that it formed

 7     part of the common purpose and the Appellants shared the intent for this

 8     type of murder.  Again, these conclusions would stand independently of

 9     the Dusa killings.

10             In summary, the Dusa murder fits within a clear pattern of

11     murders during military attacks, which in turn forms part of an

12     overwhelming pattern of crimes of extreme violence, including two

13     separate types of murder, forming part of the common purpose.

14     Overturning this single murder incident does not disturb this pattern of

15     crimes.  The Chamber's conclusions on the scope of the common purpose and

16     the JCE members mens rea are therefore not impacted.

17             Turning now to question 4(c), you've asked about the impact on

18     the mens rea each of the Appellants for murder under the third category

19     of JCE if the Appeals Chamber would overturn the finding that the Dusa

20     killings constituted murder.  I will address this question only as it

21     relates to Prlic.  My colleagues will answer this question for the other

22     five Appellants in the coming days.

23             There are two parts to question 4(c):  First, the impact on the

24     Chamber's JCE3 findings for Prlic; and second, the impact on the

25     Prosecution's arguments under Ground 1.  I will address these each in

Page 223

 1     turn, but the bottom line is that there would be no impact because

 2     Prlic's JCE3 mens rea for detention and eviction related murders is amply

 3     supported by his central role in furthering the common purpose and his

 4     shared JCE1 intent for a range of violent crimes.

 5             Turning first to the Chamber's findings.  The Chamber found Prlic

 6     responsible for two murder incidents under JCE3.  Detention related

 7     murders in Jablanica and a murder during an eviction operation in Mostar

 8     in July, volume 4, paragraphs 283 and 284.

 9             Overturning the conclusion on the Dusa murder would not impact

10     these findings because the Chamber's reasoning does not turn on whether

11     or not the Dusa killing constituted the crime of murder.  For the Mostar

12     eviction murder, the Chamber's foreseeability finding is based only on

13     Prlic's knowledge of and involvement in Mostar crimes.  These findings

14     are thus unaffected by the Dusa killing.

15             And in relation to the Jablanica murders in April 1993, the

16     Chamber found they were foreseeable to Prlic based on two factors:

17     First, that Prlic drafted the April ultimatum in the same terms as the

18     January ultimatum; and second, that Prlic was informed of the climate of

19     violence against the Muslim population in Gornji Vakuf and did nothing to

20     prevent or punish the crimes.

21             This finding is unaffected by the Dusa incident.  Prlic was

22     clearly informed of the climate of violence in Gornji Vakuf, irrespective

23     of the Dusa killing, through three reports from north-west OZ commander

24     Zeljko Siljeg sent to the government.  In that P1206 on the 19th of

25     January, Siljeg reports to the government that several facilities in

Page 224

 1     Gornji Vakuf town and villages "are on fire.  The hotel is in flames."

 2     On the 28th of January, in Exhibit P1351, Siljeg reports to the

 3     government on the seven civilians killed by shelling in Dusa, but he also

 4     reports that dozens of houses had been torched or destroyed by shelling

 5     in Uzricje, Dusa, and Trnovaca villages.  And he reports that the ABiH

 6     side is asking for an investigation into the Dusa killings as well as the

 7     execution of two civilians in another Gornji Vakuf village, Pajic Polje,

 8     and the mistreatment of prisoners in Trnovaca.

 9             On 30th of January, Siljeg reports to the government that "the

10     houses, stables, and primary school have been burned down or demolished"

11     in Gornji Hrasnica.  In Donja Hrasnica, most buildings have been burned

12     down or demolished, and there is no civilian population left in

13     Gornji Hrasnica and Donja Hrasnica.  He adds that some of the population

14     were taken prisoner and taken to Trnovaca and some fled to Grnica.

15     That's P1357.

16             This climate of violence surrounding the Gornji Vakuf attacks is

17     apparent from these reports regardless of how the Dusa killing is

18     characterised.  Siljeg reports in a matter-of-fact manner on the

19     widespread torching of homes, the detention, murder, and flight of

20     civilians, and the mistreatment of detainees.

21             And Your Honours have specifically asked for submissions on

22     whether Prlic was privy to the contents of Siljeg's 28/29 January report,

23     P1351.  As we've indicated in our brief, the Chamber reasonably found

24     that Prlic was informed of the contents of all three of Siljeg's reports,

25     volume 4, paragraph 132.  These reports were specifically addressed to

Page 225

 1     Prlic's government.

 2             As the Chamber noted, the reports discussed the HVO operations

 3     launched pursuant to the 15 January ultimatum that Prlic had signed.  The

 4     Chamber also noted that Prlic had met with Stojic, who was also an

 5     addressee on Siljeg's report, about the implementation of the ultimatum.

 6     And more generally, evidence the Chamber relies on shows that

 7     Gornji Vakuf was the most pressing matter for Prlic and the government at

 8     the time.  That's volume 4, paragraphs 125 to 127 and 129.

 9             At trial Prlic did not claim that he did not receive or read

10     Siljeg's reports.  To the contrary, in his Rule 84 bis statement he said:

11             "The period that followed the 15th of January is the only period

12     in which the HVO HZHB," that's the government, "emerged as one of the

13     addressees when information was submitted on the situation that was

14     unfolding in Gornji Vakuf."

15             So Prlic has conceded that these reports were not just addressed

16     to the government.  They were submitted to the government.  The

17     contention that Prlic did not bother to acquaint himself with official

18     military reports submitted to his government that concerned the most

19     pressing issue at the time, a contention he never made a trial, is

20     implausible.  The Chamber reasonably concluded otherwise.

21             But it's also important to step back from the specific contents

22     of these reports for a moment because, as we've argued in our appeal

23     brief, Prlic's awareness of a risk of JCE3 crimes should not depend on

24     his knowledge of specific crimes in specific locations.  His ability to

25     foresee the possible commission of JCE3 crimes, murders in particular,

Page 226

 1     arises in large measure from his central role in planning and

 2     implementing a campaign of violence against the Muslim population of

 3     Herceg-Bosna. As of October 1992, Prlic was one of the leaders who sought

 4     to change the ethnic makeup of Herceg-Bosna, including by moving out its

 5     Muslim population.  Volume 4, paragraph 43.

 6             For the next year and a half from one of the top leadership

 7     positions in Herceg-Bosna, Prlic facilitated and supported a vast

 8     criminal campaign.  A campaign whereby HVO forces systematically attacked

 9     Muslims through a range of violent crimes.  The extent of violence

10     necessary to achieve this sweeping demographic transformation was

11     apparent from the pattern of crimes that played out and inherent in the

12     goal itself, the goal of forcing thousands of Muslims out of their homes

13     and villages and out of Herceg-Bosna altogether.

14             So to conclude our answer on question 4(c) in relation to Prlic,

15     Prlic's JCE3 mens rea for murders is amply supported by his central role

16     in the common criminal purpose and his shared intent for crimes forming

17     part of that purpose, and it is augmented by the many direct reports of

18     violent crimes he received.  And I refer you to our appeal brief at

19     paragraph 57.

20             And with that, Your Honours, I'll turn back to Prlic's JCE

21     contributions and in particular his contributions to detention facility

22     crimes.  And this relates to Grounds of Appeal 16.7 to 16.11 and Ground

23     13.

24             In essence, Prlic knew the detention facility conditions were

25     poor.  He sought to deflect international attention, took inadequate

Page 227

 1     measures to improve conditions, and facilitated the systematic expulsions

 2     that this network of prisons was designed to achieve.  The Chamber made

 3     reasonable findings that are firmly grounded in the record.

 4             I'll take you chronologically through some of Prlic's conduct

 5     relied on by the Chamber, conduct that illustrates Prlic's powers in this

 6     area, his knowledge of criminal conditions, and his contributions to this

 7     system of detention, mistreatment, and expulsion.

 8             On the 8th of June, 1993, Prlic signed the government decisions

 9     establishing Gabela prison in Capljina and appointing Bosko Prevesic as

10     its warden.  Volume 4, paragraph 251.

11             Gabela was then used over the next six months or so to detain

12     thousands of Muslims in terrible conditions and then funnel them out of

13     Herceg-Bosna.  Conditions so inadequate that some detainees resorted to

14     drinking their own urine.  Volume 3, paragraph 221.

15             Gabela detainees were routinely abused and some murdered,

16     including by the warden Prlic had appointed, Bosko Prevesic, who

17     regularly beat detainees and murdered a detainee after discovering a

18     piece of bread on him.  Volume 3, paragraphs 237 and 251.

19             Prlic was well aware that Muslims being unlawfully detained and

20     subjected to poor conditions of detention.  On the 6th of July, 1993,

21     days after the HVO began implementing Petkovic's mass arrest order, Prlic

22     met with representatives of the international community.  He acknowledged

23     that 6.000 men had been detained simply because they were of military

24     age.  He also admitted that the HVO was unable to look after this many

25     detainees.  Volume 4, paragraph 153.  And his admission is borne out by a

Page 228

 1     multitude of factual findings demonstrating the severe overcrowding and

 2     other deprivations common to HVO prisons.

 3             At this 6 July meeting, Prlic told the internationals that the

 4     HVO had decided to release the detainees.  But, as found by the Chamber,

 5     these releases were transformed into a system of forcible expulsion.

 6     Detainees could secure their release from detention in terrible

 7     conditions if they agreed to depart for third countries.  Volume 4,

 8     paragraphs 153 and 64.

 9             Prlic was not just aware of this expulsion system; he actively

10     worked to further it.  On the 16th of July, just ten days after the

11     meeting I have just discussed, Prlic, with two other Herceg-Bosna

12     officials, informed an international organisation that they were going to

13     negotiate with ODPR Croatia to obtain 10.000 transit visas for Muslims

14     they claimed "wished to leave," but which included men then detained.

15     They then asked the organisation to help them implement their plan by

16     establishing transit centres for Muslims wishing to go abroad.  The

17     organisation refused to assist in what it correctly assessed was an

18     ethnic-cleansing plan.  Volume 4, paragraph 234.

19             A few days later, Prlic chaired two government sessions on 19 and

20     20 July, where the problems of overcrowding in Capljina prisons, that's

21     Dretelj and Gabela, were discussed.  In the minutes the government

22     recognised that the existing conditions violated international law, and

23     while the government discussed identifying new detention facilities, what

24     was actually done was that roughly 700 prisoners were sent from Dretelj

25     to the Heliodrom which the Chamber noted was overcrowded throughout its

Page 229

 1     operation, while the remaining Dretelj and Gabela prisoners continued to

 2     languish in appalling conditions.  I refer you to volume 4,

 3     paragraphs 248, 253 to 255, and 268.

 4             This photo, Your Honours, shows effects of the conditions we are

 5     talking about here.  This is P4588, page 9.  These are Dretelj detainees

 6     who were transferred to ABiH-held territory in late August after just two

 7     months of detention.  That's volume 3, paragraph 71; and Witness BQ, at

 8     page 7908 to 7914.  This shows the deprivations they were subjected to,

 9     deprivations that Prlic could have alleviated if he responded

10     appropriately to the reports brought to his attention.

11             Nearly a month after these government sessions in July, on 16

12     August 1993 a representative of the international community informed

13     Prlic that Heliodrom detainees were being sent to work at the front and

14     some had been wounded while working.  Volume 4, paragraph 229.  What does

15     Prlic do with this alarming report?  Nothing.  Volume 4, paragraph 232.

16             By the time of the 5th September government session a few weeks

17     later, images of Dretelj detainees, like the one you just saw, had been

18     broadcast internationally.  Volume 3, paragraph 71.

19             JUDGE AGIUS:  You have ten minutes.

20             MS. GUSTAFSON:  Thank you, Your Honour.

21             JUDGE AGIUS:  Thank you.

22             MS. GUSTAFSON:  And Herceg-Bosna and Croatian leaders are facing

23     international pressure regarding detention facilities.  For example,

24     volume 4, paragraph 604, and P9507, cited at volume 3, paragraph 562.

25             This international pressure is reflected in the minutes of the 5

Page 230

 1     September government session where the government concludes that

 2     mistreatment and poor conditions in detention facilities have become

 3     "harmful to the reputation and interests" of Herceg-Bosna.  That's P4841,

 4     relied on at volume 4, paragraphs 219 and 244.

 5             The government claims at this session that it is not responsible

 6     for the present situation but it nevertheless decides to take action "in

 7     order to avoid the situation being used in ways that are adverse to the

 8     political and other interests" of Herceg-Bosna.

 9             Then the government issues tasks to various departments, tasks

10     that on their face are aimed at improving detention facility conditions.

11     However, as the Chamber reasonably found, these actions were inadequate

12     because the bad conditions continued for many months more; indeed, the

13     day the centres were closed down, well into 1994.  Volume 4,

14     paragraphs 219 to 220.

15             These government minutes are telling.  Prlic has known for

16     months, as the documents demonstrate, that detention facility conditions

17     are inadequate, yet he is spurred to take action - inadequate action - by

18     international scrutiny that could harm the political interests of

19     Herceg-Bosna.

20             In his appeal, Prlic does not even engage with the Chamber's

21     conclusion that this government session reflects Prlic's insufficient and

22     inappropriate response to detention facility crimes.  Instead, he tries

23     to affirmatively rely on these minutes as an example of his and the

24     government's effort to combat crimes.  He just disregards the Chamber's

25     contrary conclusion.  I refer you to paragraph 621 of his appeal.

Page 231

 1             Prlic's disingenuous response to detention facility crimes is

 2     reinforced by a letter he wrote on 2 December 1993 to Cedric Thornberry,

 3     P7008, relied on at volume 4, paragraph 262.  Prlic professes in this

 4     letter his readiness to establish the facts about what he calls "the

 5     possible incorrect treatment of detainees" which, of course, he knows is

 6     not possible but actual, and he knows it's not just incorrect but

 7     criminal.

 8             He then states as a sign of goodwill that the government has

 9     decided to unilaterally release several hundred detainees and this

10     goodwill promise of release was also a ruse.  As I've already noted, the

11     supposed release of detainees was, in fact, a system of deportation.

12     And, indeed, shortly after making this promise to Thornberry, Prlic's

13     government is sent a string of reports from Berislav Pusic, who is head

14     of the government's exchange services implementing Boban's 10 December

15     decision to close detention facilities.

16             The statistics in these reports demonstrate that the vast

17     majority of the purportedly released detainees are being sent to

18     ABiH-held territory or to third countries.  I refer you to P7178, P7185

19     P7246 and P7468; and volume 4, paragraph 1131.

20             The sample of the evidence I've just reviewed amply supports the

21     Chamber's conclusion, at volume 4, paragraph 273, that Prlic knew about

22     harsh conditions in HVO detention facilities, and nonetheless justified

23     the detentions, denied the situation was bad, and on occasion took

24     inappropriate measures and allowed the detainees to be moved to ABiH-held

25     territory or third countries.

Page 232

 1             Prlic's challenges to the findings on his contributions to these

 2     crimes largely boiled down to a repetition of his failed trial argument

 3     that he had no power over these facilities.

 4             We've responded to these claims in detail in our brief.  Today

 5     I'll just underscore one point on this issue:  Prlic says now that he had

 6     no power but he did not make this claim at the time.  At government

 7     sessions discussing detention facilities, the government doesn't claim it

 8     has no power to act; it claims it's not responsible but then exercises

 9     authority and demonstrates its power to intervene, albeit with inadequate

10     measures.

11             And when interacting with internationals who are protesting to

12     Prlic about detention facility crimes, Prlic doesn't say, Don't look at

13     me, I have no power.  To the contrary.  He promises to act, to release

14     detainees, to close detention facilities, to bring perpetrators to

15     justice.  He did not follow through on these promises, but he

16     consistently held himself out as having the power to address detention

17     facility crimes.

18             Grounds 13 and 16.7 through 16.11 should be dismissed.

19             Unless Your Honours have any further questions, that concludes my

20     submissions.

21             JUDGE AGIUS:  Thank you very much.

22             That brings me now to Mr. Karnavas.  You've got 30 minutes,

23     starting from now, to reply.  Thank you.

24             MR. KARNAVAS:  One moment.  Excuse me, Mr. President.

25                           [Defence counsel confer]

Page 233

 1             JUDGE AGIUS:  Are you going to share again?

 2             MR. KARNAVAS:  Yes, Your Honour, but we're going to reverse

 3     roles.  I'm going to go first.

 4             JUDGE AGIUS:  I see.  You have got 30 minutes.  Your client --

 5     I'm not going to stop him, of course, but I think your client should

 6     understand that when he engages a lawyer, he should leave it in the hands

 7     of his lawyer.  But anyway, let's proceed.  Thank you.

 8             MR. KARNAVAS:  Thank you, Mr. President.  Your Honours, good

 9     afternoon.

10             Just as facts get in the way of a good story, so do inconvenient

11     truths interfere with a purpose-determinative narrative.

12             Now, I'm going to start from where my learned friend ended and

13     then I'll go back to the beginning of the Prosecution's presentation.

14             "People, citizens of Mostar, you have to understand that this is

15     a judgement day when you have to start with fight.  I'm inviting citizens

16     who can bear a rifle, who can bear a rock, to kill Ustasha.  We shall

17     keep on.  We shall not stop until there is a single Ustasha left."

18             Now, for those who may not know what an Ustasha is, that is the

19     pejorative term for Croats during this period.  Of course, the term goes

20     back to World War II.  I'm not going to give a history lesson.  I think

21     we all know that.

22             But when were these words spoken and by whom?  This is June 30th,

23     1993.  This is in Mostar.  This is in Mostar.  And these are the words of

24     Commander Pasalic.  Halilovic was the one that actually said, "We shall

25     keep on.  We shall not stop until there's a single Ustasha left."  On

Page 234

 1     June 30th, this was on Radio Mostar so everybody could hear.  All the

 2     Croats could hear.  The peace-loving ABiH, this is their approach.  At

 3     the same time while they were supposed to be working with HVO, these are

 4     the remarks that are being made.

 5             And you must understand - and others will talk about this - that

 6     there was an act of treachery where the HVO soldiers were killed by their

 7     comrades, Muslims that were serving in the HVO.  They were doing the

 8     handiwork of the ABiH.  And this was what precipitated many of the events

 9     that follow after June 30th.

10             Be that as it may, it has to be very clear -- and the evidence is

11     there.  We have it all.  Look at what we've cited.  I'll go back to what

12     I said earlier:  The HVO HZHB could not issue orders to the military.

13     Mate Boban was the President of the Presidency, so he was above the

14     government.  Only he could order the military.

15             Dr. Prlic never orders anybody.  The fact that he presides over

16     these meetings, okay, what does that mean?  It is not up to Dr. Prlic to

17     decide what is going to be on the agenda.  Everybody proposes.  He has no

18     authority not to include something on the agenda.  So where is the power?

19     He doesn't appoint.  He has no authority to appoint someone.  The fact

20     that he signs the appointment, even if he doesn't agree with the

21     appointment, doesn't make it his appointment.  No more so when the

22     President of a Bench signs a decision or a judgement where he or she is

23     in the minority.  It is not the President's judgement; it's the Trial

24     Chamber's judgement.  But to keep this mantra, Prlic orders, Prlic

25     decides, Prlic this, Prlic that, is all nonsense.

Page 235

 1             Now, I'm going to go back to where we started and this thing

 2     about ethnic -- to change the ethnic composition.  Now, some people read

 3     the newspaper and say, Bosnia this, Bosnia that.  The country's name is

 4     Bosnia and Herzegovina.  They are two different regions.  And there is no

 5     way on earth that you're going to make a Central Bosnian Croat into a

 6     Herzegovinian.  It's just nonsense.  They're different.  They're about as

 7     close as a southerner from the deep south to a New Yorker.

 8             So this nonsense about trying to homogenise Herzegovina when 95

 9     per cent of Herzegovina was resided by Croats.  This nonsense about

10     reverse ethnic cleansing, what the Prosecution doesn't say and what the

11     Trial Chamber ignores completely, that the Croats in Central Bosnia were

12     rounded with the Mujahedin on their door-steps.  And, yes, they wanted to

13     get them out.

14             The Prosecution's theory and the Trial Chamber's conclusion is

15     that they were reversed -- they reverse ethnically cleansed the Croats

16     from Central Bosnia so they could repopulate Herzegovina.  Where do those

17     Croats go when they finally escaped?  They went to Croatia.  Why?  There

18     was no room in Herzegovina by that point.  There were so many refugees

19     from everywhere and displaced persons.  They went to Croatia.  So it

20     wasn't some evil plot to get those people out of there, to plant them in

21     Herzegovina, and somehow a Central Bosnian Croat would go up or his seeds

22     would grow up to be Herzegovinian.  Nonsense.

23             Tudjman and Banovina, no doubt he had an obsession.  Well, when I

24     look at the map, too, as a Greek, I look at Asia Minor and say, Yeah,

25     Constantinople is ours, the coast is ours.  But that's -- historically

Page 236

 1     you can look at it, but it's no more ours today than it will be tomorrow.

 2     Tudjman looked at the Banovina, referenced the Banovina, and in 1991, as

 3     I indicated, was thinking of what would happen if Bosnia-Herzegovina

 4     fell.

 5             Now, the Prosecution keeps harping about this one presidential

 6     transcript.  So right before this presidential transcript, on August 17,

 7     1992, Dr. Prlic gives an interview.  It's 1D02078.  The interview is in

 8     Split.  Joining him was a fellow named Jure Pelivan, and he was the

 9     President of the Government of BiH at the time.  He's a Croat living in

10     Sarajevo.  He's from Sarajevo.  I don't know if he is still alive these

11     days.  But in there, Dr. Prlic explicitly talks about what this

12     temporary -- he says:

13             "The Croatian Defence Council is a civilian authority; namely,

14     the temporary executive government of the Croatian Community of

15     Herceg-Bosna, and that much should be clear."

16             He goes on and he says:

17             "The temporary executive government was elected to be the

18     President of the War Presidency of the municipality assemblies, ensuring

19     in that way the legitimacy of that temporary executive government.  In

20     all its documents, it emphasises that all of them are temporary

21     documents.  It adopts interim measures.  It complies with the legislation

22     of the republic.  In the preamble of all its decisions, it refers to

23     decisions concerning the introduction of the state of war, the imminent

24     threat of war, and the Constitution of Bosnia-Herzegovina," echoing what

25     Dr. Prlic said this morning.

Page 237

 1             Now, this is an interview in 1992, in August, the 17th, one month

 2     before this famous September conversation that they have in Zagreb, and

 3     I'm going to get to that.

 4             He goes on to say:

 5             "I believe that a Constitution ... one road, one direction

 6     towards sustaining the statehood of Bosnia-Herzegovina and the

 7     materialisation of the interests of equally the Croatian and the other

 8     constituents peoples living in it."

 9             Nothing about carving up.  Nothing about grabbing.  Nothing about

10     joining Croatia.

11             "The Croatian Community of Herceg-Bosna fully respects that

12     proposal of the Constitution.  We have to organise everyday life."

13             Remember, I was saying, it's a failed state.  Bosnia-Herzegovina

14     has failed.  It doesn't exist as a state.  For all intents and purposes,

15     nothing is functioning.  That's why the municipalities had to take

16     actions on their own.

17             "We have to organise everyday life.  Our economic, financial and

18     every other system in Bosnia-Herzegovina has collapsed."

19             And it goes on.  You can see it for yourselves, Your Honours.

20             But now let's go to this famous 17th September, 1992.  We heard

21     so much about it, and it's interesting.  During the trial, the

22     Prosecution had, because of their limited resources, I suspect, had only

23     translated parts of it.  It turns out that the parts that they translated

24     gave a one-sided picture.  And that's the whole problem with this

25     judgement.  Oh, sitting there.  And if I didn't know any better, I would

Page 238

 1     have bought everything they just said because it sounds good.

 2             But there's another side to the story.  In that same meeting

 3     where Prlic is sitting there listening to Tudjman, and I would imagine

 4     it's a like a meeting where you're sitting around and there's

 5     President Trump saying all sorts of stuff, but who knows whether you can

 6     take him seriously or not.  But can you really be associated with what

 7     that person is saying and saying that those are your -- you're adopting

 8     those because you're sitting there politely saying nothing?  But this is

 9     what Prlic says.

10             In this document, which is 1D00397, I believe that's the

11     document.  If I'm not -- I'll correct the record.  I'm sorry.  It's

12     P00498.  Sorry about that.  And I'm referring to paragraphs 28 to 29.

13             "It has been clear to me ever since I became involved in this and

14     since I have been in this post.  This aim is the forming and ordering of

15     Bosnia-Herzegovina in accordance with the principles of the European

16     community."

17             He is saying this in front of Tudjman.

18             "This is the constituting of Bosnia-Herzegovina through three

19     national units.  I think that is -- that is convenient for the Croats,

20     but the national composition of the population should not be the only

21     criteria.  I would like to say that this is -- that this part we have

22     generally succeeded in defending the Croatian areas except in the Bosnian

23     Posavina."

24             Well, what are we talking about defending the Croatian areas?

25     Croats have been living there for generations.  And those are the areas

Page 239

 1     where, just like the Serbs, and just like the Bosniaks, they've been

 2     situated there.  So they're defending the areas, whether it's Posavina,

 3     whether it's Central Bosnia, whether it's Herzegovina.  And they're all

 4     different even though they're part of the same country.  They have --

 5     they're different.  Just like a New Yorker is different from somebody

 6     from Mississippi.  Now we go to further on.  He says:

 7             "We have organised the authorities.  This is only starting.  We

 8     have an Official Gazette."

 9             Why as an Official Gazette necessary?  So everybody could know

10     what the laws were.  And guess what, news flash:  Every municipality had

11     a gazette prior to the war.  Second news flash:  Ribicic, the

12     constitutional expert from Slovenia, and Slovenia was part of Yugoslavia,

13     and I might have missed that the day of class, but he claimed that by

14     having a gazette, the Croatian community and the Croatian Republic of

15     Herceg-Bosna took on state-like qualities when every municipality had a

16     gazette.  And that shows you how the gentleman was discredited, but none

17     of that is taken into consideration.  Anyway, we go on:

18             "We are passing necessary decrees.  We are trying to take care --

19     and to take care of the citizen aspect in the liberated territories.  Why

20     is this important?  It is important because it is a disorganised

21     situation.  People will join those who are organised if we set up our

22     institutions through the" --

23             JUDGE AGIUS:  Mr. Karnavas.

24             MR. KARNAVAS:  Sorry.

25             "If we set up our institutions through the SDK, the social

Page 240

 1     accounting service," that's the payment bureau I was talking about

 2     earlier.

 3             Because the payment bureau, the way it worked, money would go

 4     from the municipalities to the state, and then from the state it would go

 5     back down in these itemised budget areas for education, and for garbage,

 6     for this and that and the other.  That stopped because -- and we brought

 7     in a witness who testified that if the electrical grill and the

 8     telephones are not functioning, that system cannot work, which is why

 9     they had to make provisions from -- for themselves.

10             So if you are going to look at that transcript, I invite your

11     close scrutiny and attention to all of it, or at least also the parts

12     that we make reference to.  Not just the one-sided part.  And I

13     understand they have a limited budget, they can only translate what is

14     convenient for them which is why they limited the translations on many of

15     the things that they did during the trial.

16             Now before I go on and before I forget, there was one point I

17     wanted to react but I know we're in an appeal court, and so I tried to

18     keep my -- to try to stay calm, not to get over-excited.  But at one

19     point my learned friend said that "a contention never made at trial," as

20     if we have a burden of proof.  We have no burden of proof.

21             If they wanted to bring in Siljeg, they could have.  Now they

22     tell him that he did this, he did that, his reports are so great.  Why

23     not bring the gentlemen in if this is the genesis - the start, that is -

24     of the JCE, and this guy is the bearer of truth and his reports are to be

25     accepted, and we can get from him why he sent it to the government, why

Page 241

 1     he copied the government, why would they bring him in?  They questioned

 2     him.  He was available.  They got his diaries.

 3             Instead, well, if you can't go through the front door, maybe

 4     through the basement window, through the bar table motion.  And now they

 5     say:  Accept this as the truth without any proof that that was actually

 6     delivered during that period of time.

 7             Now, I want to speak about January 15th.  Let me go back a little

 8     bit.  We already said that on the 2nd, 3rd of January, fighting began in

 9     Gornji Vakuf.  Began right after the new years because the Croats during

10     Christmas and new years, they like to fly their flag and they weren't

11     able to do so during the Communist era.  They would have to celebrate

12     privately because Tito wasn't a big fan of religion.

13             And all of this came out, this is all testimony, so it's not

14     Karnavas testifying.

15             And then around the 6th, things are picking up.  This is sort of

16     craziness of soldiers drinking and getting out of control.  By the 11th

17     we said there was actual fighting.  I've already told you on the 2nd and

18     on the 10th in Geneva what is happening, and when Izetbegovic -- just as

19     Boban would go to Geneva, some of their generals would go there because

20     there was a political component that Attacari [phoen] hosting -- not

21     hosting but he was directing, and there was a military aspect.

22             And there was Nambiar I believe, General Nambiar was the

23     gentleman's name, and he would sit there and they would talk about

24     military matters.  But on the 10th -- okay, 11th is the fighting in

25     Gornji Vakuf.

Page 242

 1             On the 10th, Enver Hadzihasanovic, the commander of the 3rd

 2     Zenica Corps, issued an announcement applying pressure on the Muslim

 3     leadership to reject the internal organisation of BiH into three

 4     constituent units, because by that point, the framework -- the Vance-Owen

 5     Peace Process, VOPP as client would like to say, was already out.  That

 6     this was -- this was in the making, okay?  And so he is saying he's

 7     against that.  And this is 4D0123, and I believe we made reference to

 8     this in our brief in I want to say 16.1.3.  And here is what the

 9     gentleman says:

10             "On the occasion of political negotiations in Geneva and on

11     request of huge number of units and fighters of the 3rd Corps of B and H

12     Army, we offer you our unconditional support in our office to prevent

13     division of B and H on ethnic or any other principle.  Do not allow,

14     neither shall we, that the blood spilled so far and the sacrifices of our

15     fighters, children, women, fathers, and mothers be in vain."

16             That's on the 10th.  That is on the 10th.  So is it any wonder,

17     is it any wonder that on the 11th, there's fighting?  So, is it a

18     coincidence or is there a convergence.

19             Now on the 13th of January, so two days later after there's the

20     fighting, there's a document, P0115, where General Petkovic, and I'm sure

21     they're going to talk about it, and I don't want to steal their thunder,

22     and they know much more about this, but at that point he requested that

23     the situation be calm and to analyse the reasons for the conflict.

24             The 11th, it starts:

25             "It's really getting out of control.  Remember, the enemy are the

Page 243

 1     Serbs.  These are two friendlies.  They're working together.  They're

 2     part of the armed forces of BiH."

 3             And General Petkovic is saying we need to figure out what is

 4     going on and calm down the situation.

 5             Then we have the 15th, as I indicated, the Zagreb Agreement.  But

 6     here's Boban, here's Boban January 15th, by serendipity, P01158 - we

 7     mention this in our brief in 16.1.1 - here is Boban saying, at any cost,

 8     one should listen to reason and make comprises and accept certain

 9     concessions in order to stop the war and make Bosnia and Herzegovina the

10     state foreseen by Izetbegovic in his speech when he said that tomorrow it

11     should be a free country with a free flow of people and capital.

12     Incompatible with this thinking is the claim that any territorial

13     organisation means giving something to someone when Bosnia and

14     Herzegovina is a unified whole.  Nobody can give anything to anyone.

15     Everybody has equal rights, and their rights have been determined by

16     arguments.  That's VOPP.  That is VOPP in its clearest forms.  But this

17     is Boban, on the 15th.  This is when the Zagreb Agreement is reached and

18     when General Praljak comes down to Mostar.

19             Now the situation happens in Gornji Vakuf and we submit that if

20     you look at the evidence closely, the situation in Gornji Vakuf is out of

21     control.  This 15th agreement was for the purposes of stopping, not of

22     escalating and certainly not of the start of some joint criminal

23     enterprise because, Your Honours, the evidence is overwhelming.  During

24     this period throughout Bosnia and Herzegovina, you had HVO and ABiH

25     co-operating, joint commands, fighting together in other parts.  And we

Page 244

 1     submit that Gornji Vakuf is sort of representative of what's happening in

 2     the conflict between these two armies and these two peoples; that in

 3     situations things are getting out of control and then they would have

 4     these meetings, they would have joint commands, and so on and so forth.

 5     It's a little bit like what is happening in Syria, with all these

 6     different factions trying to figure out a way to move forward.  And

 7     there's starts and fits, but there is -- this is not representative of a

 8     joint criminal enterprise.

 9             Yes?

10             JUDGE AGIUS:  You have just under seven minutes left.

11             MR. KARNAVAS:  You're breaking my heart, Mr. President.  Okay.

12     I'll move quicker.

13             On 18 January, 1D01521, there is a letter that was sent by Boban

14     and Ahmagic [phoen], where they're saying, "We also have evidence showing

15     that on the basis of an order" -- this is to Izetbegovic.  "... on the

16     basis of an order of your highest leadership, the Army of BiH prepared,

17     planned, and carried out the attack on HVO units and civilian population

18     in Gornji Vakuf."  This is meriting some consideration, so what we're

19     saying is there's evidence that you should look at, not just what the

20     Prosecution points you in that direction.

21             Just a couple of closing remarks, Your Honour, and then perhaps

22     Dr. Prlic will -- can get his points in as well.

23             I'm reminded, thinking about all of this, our biggest challenge

24     was, how do we convey this picture to you all.  This was a five-year

25     trial.  It's 12 years that I have been working and living with this case.

Page 245

 1     Very complicated.  How do we convey the mistakes, the errors, the

 2     omissions, the commissions, that were made in this particular case?  How

 3     do we get you into the picture so you can see the challenges?

 4             The Prosecution has done exactly what they have done in their

 5     brief:  The echo what is in the brief and they say, See, the Trial

 6     Chamber found that.  Well, of course they found that because they only

 7     looked at one piece of the evidence.  And we're saying, Don't take the

 8     easy way, don't adopt their approach; but, rather, look at all of the

 9     evidence.  That is the simplistic path of least resistance.  Just read

10     the judgement.  We say that would be manifest injustice if you were to do

11     that.

12             And I'm reminded of the words of Justice Stewart in the U.S.

13     Supreme Court in Jackson vs. Virginia - it's a short quote - because I

14     think it goes to what we're talking about:

15             "Any evidence is relevant -- that has any tendency to make the

16     existence of an element of a crime slightly more probable than it would

17     be without the evidence -- could be deemed a 'mere modicum.'  But it

18     could not seriously be argued that such a 'modicum' of evidence could, by

19     itself, rationally support a conviction beyond a reasonable doubt."

20             Wise words.  And what we're saying is, you have to just -- you

21     have to look at the other evidence that was part of the record, not just

22     what the Prosecution is citing because they're citing the Trial Chamber

23     and we're claiming they ignored our evidence and we've given you -- as I

24     said earlier, we've given you all the citations.  They claim we didn't

25     give you citations today; we just make arguments.  There are over 2.600

Page 246

 1     footnotes, and I would say there are over 10.000, if not 15.000

 2     references to the record.

 3             We're asking you to please not take the easy way that the

 4     Prosecution is asking you to do.  Look at the evidence, and we're

 5     confident - we're confident - that you will reach the right decision, and

 6     the only decision in this case is a complete reversal.

 7             Thank you.

 8             JUDGE AGIUS:  Thank you.

 9             Mr. Prlic, you have three minutes.

10             THE APPELLANT PRLIC:  I just wanted to use break to have short

11     consultation with my client [sic] because it was scheduled like that.

12     But if it is three minutes, I just want to make one proposal.

13             Collective way of decision-making is mentioned, that.  I stay

14     behind all decision of HVO HZHB, all the decision of government of HRHB.

15     I made least of all those minutes introduced in dossier.  And I suggest,

16     if you accept, I'm going tomorrow to bring list of all meetings, 80 of

17     them.  This is the only way for me to make any decision.  And then make

18     your judgement.

19             Thank you.

20             JUDGE AGIUS:  Thank you.

21             That doesn't mean to say that I'm giving you permission to do

22     that, by the way.

23             That brings today's hearing to an end.  We will reconvene

24     tomorrow at 9.30, like today.  The timetable, the schedule, will be a

25     little bit different.  The first break will be longer.  Otherwise, we

Page 247

 1     stick to the same schedule which has been communicated to you.

 2             So 9.30 tomorrow morning, and it will be Mr. Stojic's Defence.

 3     Thank you.

 4                            --- Whereupon the hearing adjourned at 4:09 p.m.

 5                           to be reconvened on Tuesday, 21 March 2017, at

 6                           9:30 a.m.